[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




 
                    THE INTERNATIONAL CRIMINAL COURT

=======================================================================

                                HEARINGS

                               BEFORE THE

                              COMMITTEE ON
                        INTERNATIONAL RELATIONS
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                          JULY 25 AND 26, 2000

                               __________

                           Serial No. 106-176

                               __________

    Printed for the use of the Committee on International Relations


        Available via the World Wide Web: http://www.house.gov/
                  international--relations

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
68-483 CC                   WASHINGTON : 2000




                  COMMITTEE ON INTERNATIONAL RELATIONS

                 BENJAMIN A. GILMAN, New York, Chairman
WILLIAM F. GOODLING, Pennsylvania    SAM GEJDENSON, Connecticut
JAMES A. LEACH, Iowa                 TOM LANTOS, California
HENRY J. HYDE, Illinois              HOWARD L. BERMAN, California
DOUG BEREUTER, Nebraska              GARY L. ACKERMAN, New York
CHRISTOPHER H. SMITH, New Jersey     ENI F.H. FALEOMAVAEGA, American 
DAN BURTON, Indiana                      Samoa
ELTON GALLEGLY, California           MATTHEW G. MARTINEZ, California
ILEANA ROS-LEHTINEN, Florida         DONALD M. PAYNE, New Jersey
CASS BALLENGER, North Carolina       ROBERT MENENDEZ, New Jersey
DANA ROHRABACHER, California         SHERROD BROWN, Ohio
DONALD A. MANZULLO, Illinois         CYNTHIA A. McKINNEY, Georgia
EDWARD R. ROYCE, California          ALCEE L. HASTINGS, Florida
PETER T. KING, New York              PAT DANNER, Missouri
STEVE CHABOT, Ohio                   EARL F. HILLIARD, Alabama
MARSHALL ``MARK'' SANFORD, South     BRAD SHERMAN, California
    Carolina                         ROBERT WEXLER, Florida
MATT SALMON, Arizona                 STEVEN R. ROTHMAN, New Jersey
AMO HOUGHTON, New York               JIM DAVIS, Florida
TOM CAMPBELL, California             EARL POMEROY, North Dakota
JOHN M. McHUGH, New York             WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   GREGORY W. MEEKS, New York
RICHARD BURR, North Carolina         BARBARA LEE, California
PAUL E. GILLMOR, Ohio                JOSEPH CROWLEY, New York
GEORGE RADANOVICH, California        JOSEPH M. HOEFFEL, Pennsylvania
JOHN COOKSEY, Louisiana
THOMAS G. TANCREDO, Colorado
                    Richard J. Garon, Chief of Staff
          Kathleen Bertelsen Moazed, Democratic Chief of Staff
                  Stephen G. Rademaker, Chief Counsel
                    Marilyn C. Owen, Staff Associate





                            C O N T E N T S

                              ----------                              

                               WITNESSES

                                                                   Page

                         TUESDAY, JULY 25, 2000

Part 1: A Threat to American Military Personnel?

The Honorable John R. Bolton, Esquire, Senior Vice President, 
  American Enterprise Institute..................................     3
The Honorable Lawrence S. Eagleburger, Senior Foreign Policy 
  Advisor, Baker, Donelson, Bearman, and Caldwell................     7

                        WEDNESDAY, JULY 26, 2000

Part 2: Recent Developments

The Honorable David J. Scheffer, Ambassador-at-Large for War 
  Crimes Issues, U.S. Department of State........................    39
The Honorable Walter Slocombe, Under Secretary of Defense for 
  Policy, U.S. Department of Defense.............................    43


                                APPENDIX

                         TUESDAY, JULY 25, 2000

Prepared statements:

The Honorable Benjamin A. Gilman, a Representative in Congress 
  from New York and Chairman, Committee on International 
  Relations......................................................    62
John R. Bolton...................................................    64

                        WEDNESDAY, JULY 26, 2000

Prepared statements:

The Honorable Benjamin A. Gilman, a Representative in Congress 
  from New York and Chairman, Committee on International 
  Relations......................................................    77
The Honorable Christopher H. Smith, a Representative in Congress 
  from New Jersey................................................    81
The Honorable David J. Scheffer, Ambassador-at-Large for War 
  Crimes, U.S. Department of State...............................    87

Material submitted for the record:

Prepared statement of Monroe Leigh on behalf of the American Bar 
  Association....................................................    92
Prepared statement of Lawyers Committee for Human Rights.........   102


THE INTERNATIONAL CRIMINAL COURT: PART 1--A THREAT TO AMERICAN MILITARY 
                               PERSONNEL?

                              ----------                              


                         TUESDAY, JULY 25, 2000

                          House of Representatives,
                      Committee on International Relations,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:16 a.m., in 
room 2172, Rayburn House Office Building, Hon. Doug Bereuter 
presiding.
    Mr. Bereuter. The Committee will be in order. We will 
reconvene and proceed with the hearing scheduled for today. 
Today we hold the first of two hearings on the International 
Criminal Court. Tomorrow we will hear from two witnesses from 
the Clinton Administration, but today we are privileged to have 
before us two very distinguished former Executive Branch 
officials.
    Former Secretary of State Lawrence Eagleburger and former 
Assistant Secretary of State for International Organization 
Affairs John Bolton bring with them a wealth of experience 
relevant to the International Criminal Court. They are well-
known to all Members of the Committee and require no 
substantial introduction.
    The subject of the International Criminal Court probably is 
new to many Members, however, so I will exercise the 
prerogative of the Chair to offer a few opening comments, 
primarily prepared by Mr. Gilman, who unexpectedly could not be 
here this morning.
    There are many strongly held opinions about the 
International Criminal Court, and many passionate 
disagreements. The one thing that virtually everyone agrees on, 
however, is that the way this issue has evolved over the last 
few years has been nothing short of disastrous from the point 
of view of the national interest of the United States. This is 
a very important issue that we have before us today. Today we 
are well on the way to establishment of an U.N.-led criminal 
court which will claim the jurisdiction to prosecute and 
imprison many people, including, most important to us, of 
course, American servicemembers and other officials of our 
government in certain instances, irrespective of whether the 
United States ever becomes a party to the Court.
    No one likes what has happened in this country with regard 
to this issue, least of all the Clinton Administration itself. 
Tomorrow the Administration's representative will tell us how 
they are trying to undo the damage that seems to be underway. 
They will tell us, I am sure, that they are working hard not to 
bring the United States into the Court, which is not their 
view, but rather to make it safe for the United States to 
remain outside the Court.
    Supporters of the International Criminal Court claim that 
the Administration should have overlooked the flaws in the Rome 
Statute creating the Court. The Administration's mistake, in 
their view, was its decision in 1998 to walk away from the 
Court at the last minute after having done so much to help 
launch the project. I am not associating myself with those 
particular criticisms.
    Today they urge us to disregard the Court's shortcomings 
and formally submit our nation and its officials to the court's 
jurisdiction by becoming party to the Rome Statute. Another 
group of critics, including the sponsors of the American 
Servicemembers' Protection Act of 2000, believe that the 
Clinton Administration's mistake was in launching this project 
in the first place, given the likelihood that it might spin out 
of control, as indeed it seems to have done.
    They doubt that the Clinton Administration will ever be 
able to reverse the diplomatic defeats it sustained in the Rome 
negotiations, and they view the Court as a long-term threat to 
our sovereignty and the legal supremacy of the United States 
Constitution. We hope that our witnesses will be able to help 
us sort through these issues today as we proceed toward the 
hearing tomorrow, and clarify for us what can be done at this 
date to protect our national interests.
    Before introducing the panel very briefly, I would next 
turn to recognize our distinguished Ranking Democratic Member, 
Mr. Gejdenson, for any opening comments that he might wish to 
offer at this point. Mr. Gejdenson.
    [The prepared statement of Mr. Gilman appears in the 
appendix.]
    Mr. Gejdenson. Thank you, Mr. Chairman. Let me say that I 
am very happy to have both gentlemen before us but particularly 
Mr. Eagleburger, who has served this country so well and had 
such a distinguished career through the years. Even though on 
rare occasions we had some differences with him on policy, he 
is someone who does bring before the Committee and before the 
Congress a wealth of knowledge and has really served this 
country in an outstanding way, and I really appreciate both 
these gentlemen but note in particular a long association with 
Mr. Eagleburger.
    Really I think every Member on this Committee who has dealt 
with him through the years has the greatest respect for him 
even where again there may be some disagreements. Thank you, 
Mr. Chairman.
    Mr. Bereuter. Thank you, Mr. Gejdenson. Mr. Secretary, I 
have already said that you require no introduction so now I 
hesitate to introduce you but I will simply say that since 
leaving your very distinguished career with the Department of 
State, which culminated in your appointment as Secretary of 
State in 1992, you have worked, as the audience should know, as 
senior foreign policy advisor to the law firm of Baker, 
Donelson, Bearman and Caldwell, where you work with among 
others our former colleague from the Senate, the Majority 
leader, Howard Baker.
    I understand that you would like your colleague at the 
table, John Bolton, to testify first. I am sure this comes as 
no surprise to John because you worked together for 4 years 
during the Bush Administration, and he worked, of course, as 
the Assistant Secretary of State for International Operation 
Organization Affairs where among other things he was 
responsible for our relations with the United Nations.
    Mr. Bolton previously had a very distinguished career as a 
lawyer in Washington and is now the Senior Vice President of 
the American Enterprise Institute. Among other things he has 
written extensively about the International Criminal Court. I 
think Members have some of his articles in the packets before 
them. Mr. Bolton, Members have your prepared remarks as well. 
They will without objection be made a part of the record, and 
therefore I invite you to summarize them for us and emphasize 
the key points. Mr. Bolton, you are recognized.

    STATEMENT OF HON. JOHN R. BOLTON, ESQUIRE, SENIOR VICE 
            PRESIDENT, AMERICAN ENTERPRISE INSTITUTE

    Mr. Bolton. Thank you, Mr. Chairman. It is a pleasure to be 
here again to testify on the American Servicemembers' 
Protection Act of 2000. I appreciate the opportunity to be here 
today and to voice my support for that legislation, and I will, 
as you request, summarize the statement. I have written on this 
subject extensively. What I would like to do today that I think 
might be helpful to the Committee is touch on a few of the 
important reasons why the International Criminal Court itself 
is objectionable, and some things that have happened in the 
past few years that I think help demonstrate that and 
demonstrate why the proposed legislation will be helpful.
    Support for the International Criminal Court concept is 
based largely on emotional appeals to an abstract ideal of an 
international judicial system, unsupported by any meaningful 
evidence, and running contrary to sound principles of 
international crisis resolution. Moreover, for some, faith in 
the ICC rests largely on an unstated agenda of creating ever-
more comprehensive international structures to bind nation 
states in general, and one nation state in particular.
    Regrettably, the Clinton Administration's naive support for 
the concept of an ICC has left the United States in a worse 
position internationally than if we had simply declared our 
principled opposition in the first place. I think there are 
three broad reasons why the ICC is objectionable. First, is 
that all the available empirical evidence we have demonstrates 
that the Court and its prosecutor--and I want to come to this 
important role of the prosecutor in more detail later in the 
testimony. I think we all gloss over talking about ``the 
Court'' this and ``the Court'' that when the real element of 
concern here is as much the prosecutor as the Court--will not 
achieve the stated purpose of these institutions, deterrence of 
war crimes and crimes against humanity. This is not likely to 
happen for the simple reason that the Court will not and should 
not have the authority it needs to be an effective deterrent.
    Indeed, there is not a shred of evidence that advocates of 
the ICC have presented to support their deterrence theories. 
One advocate said at the drafting of the Rome Statute that 
``the certainty of punishment can be a powerful deterrent.'' I 
think that statement is correct. Unfortunately, it doesn't have 
anything to do with the International Criminal Court. In many 
respects, the ICC's advocates fundamentally confuse the 
appropriate roles of political and economic power, diplomatic 
efforts, military force, and legal procedures.
    No one disputes that the barbarous actions under discussion 
are unacceptable to civilized peoples. The real issue is how 
and when to deal with these acts, and this is not simply or 
even primarily a legal exercise. The ICC's advocates make a 
fundamental error by trying to transform matters of 
international power into matters of law. Misunderstanding the 
appropriate roles of force, diplomacy and power in the world is 
not just bad analysis, but bad and potentially dangerous policy 
for the United States.
    Recent history is ripe with examples where strong military 
force or the threat of force failed to deter aggression or 
gross abuses of human rights. Why should we believe that 
bewigged judges in the Hague will be able to prevent what cold 
steel has failed to prevent? Deterrence ultimately rests on 
effectiveness and the ICC is unlikely to be that.
    We have one excellent example that has just taken place in 
the course of the air campaign over Yugoslavia where the 
Milosevic regime already faced an existing ad hoc tribunal 
dealing with former Yugoslavia. And even in the face of an 
existing tribunal and indeed even with precision guided weapons 
falling on the regime's head in Belgrade it still stepped up 
ethnic cleansing in Kosovo. Even viewed in the light most 
favorable to the Court, I don't think that its supporters have 
adduced any evidence that the hard men of history like Pol Pot 
and Saddam Hussein are going to be deterred by this Court. 
Holding out the prospect of ICC deterrence to those who are 
already weak and vulnerable is simply fanciful.
    Now, Mr. Chairman, in my testimony I go through at some 
length a recent report about the Rwanda and Yugoslav tribunal 
showing many of the defects that they already have. These two 
tribunals I think are at least some indication of the 
difficulties a permanent ICC would have. And if you were to 
look at a military analogy, using these two courts as kind of 
prototypes of a new weapon system that, to be frank about it, 
had some problems, I think most reasonable people would say 
``let us order a couple more prototypes before we make a final 
decision.''
    Creating the ICC based on the Rwanda and Yugoslav tribunals 
is a little bit like saying, ``Well, there are some problems 
with these prototypes but why don't we order 1,000 copies of 
them?'' The Ackerman Report also points out that these are not 
inexpensive vehicles. The Yugoslav Tribunal's budget last year 
was $94 million and the Rwanda Tribunal's budget was $68.5 
million, which are not small sums even for the United States.
    Second, Mr. Chairman, another broad problem with the 
International Criminal Court approach is the idea that the 
international search for justice is always and everywhere 
consistent with the attainable political resolution of serious 
political and military disputes, whether between states or 
within states. In the real world, as opposed to theory, justice 
and reconciliation may be consistent or they may not be and the 
idea of prosecution uberalles [ph] is something that I think we 
undertake with great reservation.
    I think the example of the South African Truth and 
Reconciliation Commission is an alternative way to look at past 
abuses by prior governments. It is something that is important, 
and here we have examples in the real world where we have seen 
the potential adverse effects of the prosecutorial approach 
embodied in the International Criminal Court.
    I discuss at some length in the testimony the Pinochet 
matter in Chile. And let me just take that very quickly as an 
example. I have no defense whatever for the allegations made 
against General Pinochet, but I think it is critical to 
understand that in a country like Chile that is today 
indisputably a democracy, the resolution of the Pinochet matter 
is for the Chilean people. It is for their elected government. 
It is an issue that still causes great passion in Chile in 
political debate, and it is exactly the wrong thing to do as 
happened over the past few years for a loose cannon Spanish 
magistrate to attempt a judicial kidnapping of Pinochet in the 
United Kingdom on the grounds that somehow this matter should 
be resolved in Spain rather than in Chile.
    The example of the Spanish magistrate and his uncontrolled, 
indeed unaccountable exercise of power, should bring to mind 
exactly the concerns that many of us have about the prosecutor 
in the proposed International Criminal Court. But, third, Mr. 
Chairman, and I think most importantly, and this is where the 
proposed legislation I think is especially important, there are 
tangible American interests at risk here. I think that the 
ICC's most likely future will be weak and ineffective and 
eventually ignored, but there is another possibility: That the 
Court and the prosecutor will be strong and effective.
    In that case, the United States may face a much more 
serious danger to our interests, if not immediately then in the 
long run, and this is where the power of the prosecutor becomes 
so important.
    But there are other aspects to the treaty that are 
objectionable as well. For example, article 120 of the Rome 
Statute says that there can be no reservations to the treaty. 
Mr. Chairman, if there were nothing else objectionable about 
this treaty, that alone would be a reason to reject it. The 
notion that the Senate in its consideration can't make 
appropriate reservations is an unacceptable precedent for the 
United States.
    Second, and even more serious, this treaty purports to 
cover the nationals of non-signatories. If a country like the 
United States doesn't sign the treaty, citizens of the United 
States may nonetheless be subject to the jurisdiction of the 
Court if they commit prohibited behavior on the territory of a 
country that is a signatory.
    Now I think it is unacceptable; unacceptable, not 
compromisable; unacceptable, for the United States to be bound 
by a treaty that it is not a party to. The Administration, and 
I am sure you will hear this tomorrow, has a number of fixes 
they are going to try and make to the provisions of the rules 
of the Court and the relationship agreement that needs to be 
negotiated between the United Nations and the ICC itself that 
are not really going to address that fundamental problem. There 
are small fixes that may or may not be made to the problem 
created by article 98 of the Rome Statute, but nothing 
addresses--nothing can address--the fundamental and to me 
dispositive philosophical objection that this treaty purports 
to bind the United States even if it is not a signatory.
    Now let us be clear here. Our main concern under the Rome 
Statute should not be that the prosecutor will indict the 
occasional American soldier who contrary to his or her training 
and doctrine allegedly commits a war crime. Our main concern 
should be for the President, the Cabinet officers, and the 
National Security Council and other senior leaders responsible 
for our defense and foreign policy. They are the real potential 
targets of the ICC's politically unaccountable prosecutor. This 
statute is incredibly vague, and I give some examples in the 
testimony, of language that has a general moral proposition we 
could probably all agree with, but which has never been applied 
in a criminal context and which if it were attempted to be 
written into American criminal law, I have every confidence the 
Supreme Court would declare void for vagueness.
    The pattern of discussions we have had over the last 2 
years about these vague provisions and about a range of 
objections to the Court typically are answered by advocates of 
the Court saying, ``Well, that is not going to happen, that is 
not going to happen. It is not a concern.'' These are concerns. 
These are things that have already begun to take place. And I 
want to give a couple of examples but I think one other thing 
to keep in mind: Whether I am right or wrong the ultimate 
decision about the Court's authority is by the Court itself. 
Article 119 of the Rome Statute provides any dispute concerning 
the judicial functions of the Court shall be settled by the 
decision of the Court, and that means that once they have 
decided it is effectively out of our hands.
    Now let me just take two quick examples and then I want to 
conclude, Mr. Chairman. One of the things that is still under 
discussion is the definition for the crime of aggression. This 
is something of particular interest and particular risk to us. 
Very recently the Secretary General of the United Nations, Kofi 
Annan, expressed this view during the bombing campaign over 
former Yugoslavia. He said, ``Unless the Security Council is 
restored to its pre-eminent position as the sole source of 
legitimacy on the use of force, we are on a dangerous path to 
anarchy.'' Let me just repeat the key phrase there. The 
Security Council as ``the sole source of legitimacy on the use 
of force.''
    That is to say that if NATO in the case of Yugoslavia, or 
the United States unilaterally, undertook the use of force 
without Security Council authorization, under his view it would 
be illegal and therefore would potentially subject the United 
States and its top leaders to prosecution by the prosecutor. 
This is not hypothetical. We have already seen it happen in the 
case of the international criminal tribunal for Yugoslavia 
where a complaint was filed against top NATO leaders by, what 
else, a group of law professors arguing that several aspects of 
the NATO air campaign constituted war crimes.
    Now the prosecutor, Mrs. Del Ponte, rejected the assertion 
that NATO's actions amounted to war crimes, but by taking under 
advisement a complaint about NATO's leadership and by ruling it 
insufficient for lack of intent, which is clearly one of the 
hardest elements to prove, she made it pretty clear that she 
thought she had jurisdiction. So I think a lot of Members of 
Congress were quite surprised that the tribunal that was 
supposedly set up to try Balkan war criminals had actually been 
investigating NATO. The conclusion that Mrs. Del Ponte made 
didn't go to the overall question of the air war's legality, 
because she wasn't presented with it.
    There is another example that has also occurred recently 
that brings the future very close to home. A group of families 
of Argentine sailors killed in the Falklands conflict in the 
early 1980's in the British sinking of the Argentine warship 
General Belgrano filed a suit for damages in the European Court 
of Human Rights, arguing that the British sinking of the 
Belgrano outside of the self-declared 200-mile exclusion zone 
around the Falklands violated the Hague Convention of 1907.
    To begin with but it is important that the European Court 
of Human Rights has effectively taken jurisdiction of the case. 
They have remanded it for certain proceedings, but as I 
understand the press reports they have concluded that they do 
have jurisdiction. This is an argument that an act of war, not 
against civilians at all, against a warship amounted to a war 
crime by the British government. And while this is a civil suit 
for damages, it is only a very short step for somebody to 
conclude that the attack on the Belgrano was the fit subject 
for the prosecutor of something like the International Criminal 
Court.
    These risks of prosecution to top government decisionmakers 
in critical periods are far from hypothetical, Mr. Chairman. It 
is the reality we face. And that is the real risk of the 
prosecutor. He is not political accountable. He is not subject 
to adequate oversight. We in this country have had recent and 
very painful experience with the concept of an independent 
counsel. And just in the past few years on a bipartisan basis 
the independent counsel has been laid to its well-deserved 
rest.
    It just boggles the mind that after we have gone through 
and experienced what an unaccountable prosecutor can do, we are 
about to, or at least some suggest, wreaking this concept on 
the rest of the world. In conclusion, Mr. Speaker, I believe 
that our American policy toward the International Criminal 
Court should be a policy of ``three noes:'' No financial 
support, directly or indirectly, no collaboration, and no 
further negotiation with other governments to try and improve 
it.
    This institution is objectionable on principal. We should 
oppose it on principal, and I think the American 
Servicemembers' Protection Act of 2000 is a well-crafted 
instrument to help in our diplomatic efforts. Thank you very 
much, Mr. Chairman.
    [The prepared statement of Mr. Bolton appears in the 
appendix.]
    Mr. Bereuter. Mr. Bolton, thank you very much. Secretary 
Eagleburger, again welcome. You may proceed as you wish.

   STATEMENT OF HON. LAWRENCE S. EAGLEBURGER, SENIOR FOREIGN 
     POLICY ADVISOR, BAKER, DONELSON, BEARMAN AND CALDWELL

    Mr. Eagleburger. Thank you, Mr. Chairman. It is a pleasure 
to be here. Congressman Gejdenson's remarks this morning 
brought tears to my eyes. I came close to weeping. It is the 
first time since we have been associated for so many years 
where he said anything nice about me and I want you to know 
that I will take that and treasure it forever, Congressman.
    Mr. Gejdenson. If the staff has time, I am sure we can find 
some other nice things I have said, and I will have them go 
back and look at the record.
    Mr. Eagleburger. It is also good to be here and to see two 
people in the art work here that I have worked with and have 
great respect for. That is Dottie Fasell and Clem Zablocky, who 
were great chairmen and good friends and we miss them both, I 
am sure. I can, I hope, be brief. First of all, I would like to 
associate myself with Mr. Bolton's testimony but I want to go 
on to a couple of other items that he didn't really touch, I 
think.
    First of all, I spent a fair amount of time reading over 
the position of the Administration on this particular bill and 
it occurred to me very quickly that under normal circumstances 
those were letters I would have signed myself when I was in the 
State Department except I don't think so in this case and I 
want to try to explain why. There is a fundamental here that 
really bothers me and that is that I have no argument 
whatsoever with the United Nations and its efficacy and the 
need to establish international organizations that can deal 
with difficult problems.
    I, however, have a very serious problem if we go very far 
in conceding that the United Nations should be making 
international law. This isn't a democracy, the United Nations 
These are a number of sovereign states, some of whom the 
governments were elected by democratic means and a great many 
more who think other than democratic and whose concerns about 
human rights in terms of the way they demonstrate their own 
activities is substantially different from the mouthings they 
now put forward in the United Nations about human rights and so 
forth.
    So I think we have to be very, very careful when we are 
prepared to concede to that international institution without a 
great deal of caution the right to make international law and, 
for example, and Mr. Bolton referred to it, until we return the 
Security Council to its sole responsibility, I don't know that 
the Security Council ever was solely responsible for the use of 
force.
    It is certainly hopefully something that we can continue to 
turn to but I would suggest to you that if there may well be 
times where in the security interests of the United States 
there is a need to act whether the United Nations as such is 
going to be willing to agree to it or not. Most of the time I 
would hope that is not the case but I can assure you that if we 
are not careful we will bind our own ability to make decisions 
on when we should be acting in our security interests in ways 
that we, I think, unwisely will learn later that we should not 
have done.
    My point, gentlemen, ladies, is that I agree with Mr. 
Bolton's three noes. I do not see how it is possible to reform 
this institution through negotiations on the part of the United 
States, who with the best will in the world may be trying to 
remove the differences and the difficulties but the fact of the 
matter is the fundamental difficulty won't be done away with. 
That Court is in my judgment a creation that is both 
illegitimate and illogical.
    I know that is going to upset most of my more liberal 
friends but the fact of the matter is that particular Court, 
particularly since the United States has said it will not 
participate, that particular Court in my judgment should bear 
no real authority whatsoever and we have to make it clear that 
that is our view of it. Now why do I say that aside from the 
fact I think that we have dangerously over time slipped into 
this concept of making international law by global consensus, 
if you will, and it is a consensus that is in part made by 
countries that have no interest in the very things that we are 
most interested in trying to protect.
    And I am worried that the very things that we agree through 
a Court like this should be--international law will some day 
come back and bite us where we shouldn't be bitten. And my 
point here really to summarize, and I have said this both in 
speeches and in articles for the last 2 or 3 years, I think we 
Americans need to understand that we are going into a very 
uncertain century and anyone who thinks that because the Cold 
War is over the 21st century is going to be a relaxed period of 
time, I think is fooling himself.
    The Bosnias of this world, the problems in what used to be 
the Soviet Union, I could go through around the world and 
suggest to you any number of potential areas of instability, my 
point being I think those instabilities are likely to increase 
rather than decrease. And I would say to you that the next 
step, whether we Americans like it or not, unless the United 
States is prepared in the next decades to be seriously 
interested in trying to maintain global stability where it 
should be maintained that we are going to find ourselves by the 
middle of the century having repeated too many of the mistakes 
we made in the 20th century.
    What does that mean? That means hopefully that the United 
States with wisdom and intelligence will be prepared to be 
involved in trying to maintain or correct--maintain global 
stability or correct injustices where they occur, not that we 
are the world's policemen but when an issue becomes so 
important to the United States that we will be prepared to act 
whether others will or not.
    And Congressman Lantos, for example, will remember just to 
try to give you an example, that in the days when I was in the 
State Department we used to argue fairly strenuously about 
whether the United States should or should not do anything in 
Yugoslavia with me taking the position and the Administration 
taking the position no. But quite rightly Congressman Lantos 
and others felt very strongly that we should be acting.
    My point here is that it is precisely a question for the 
United States to decide, not necessarily with the consensus of 
everybody else. Now in the end when we went into Yugoslavia, 
yes, we had an agreement, but I would suggest to Congressman 
Lantos that his feeling as it was expressed to me at least in 
those years would have been if necessary we had--this is such a 
crucial issue that we should act on our own if we have to.
    I am not trying to put words in your mouth, Congressman, 
but I am saying the discussions we had very clearly led me to 
believe that you felt that this was such a humanitarian 
disgrace that something had to be done. I felt it was a 
humanitarian disgrace. I did not feel the United States was in 
a position to act. That is where the argument came. My point 
being we were arguing this issue on the basis of what was in 
U.S. interests.
    And I think we must continue to remind the rest of the 
world that we are going to continue to make our decisions on 
the basis of our best interests and that if, for example, we 
decide we want to act in a certain area, we should not have our 
GIs subject to the jurisdiction of this Court if somebody wants 
to make a point against the United States and its actions. And 
I would suggest to you, and then I will close, I would suggest 
to you that one of the problems we are going to have in these 
coming years is that in fact we are going to find more and more 
of the rest of the world that resents the fact that we are what 
we are, resents the fact that we are prepared to do what we can 
to defend human rights interests and act against war crimes and 
are going to find ways, if they can, to bring against us the 
same judgments that we are supposedly making against others.
    And we will, before this is over, before this century is 
out, and long before this century is out if we continue along 
this path, we will find ourselves being charged with war crimes 
by those who have no business in the business of charging war 
crimes because they themselves may well be war criminals or 
they will be neutrals who resent the power and influence of the 
United States and will be prepared to act against us if they 
can.
    We are walking into, in my judgment, by even doing anything 
more with this treaty, we are walking into a potential real 
mess. I hate to say it because the United States should not 
always stand against these kinds of issues. But, for example, 
in the mining treaty we had a serious responsibility to our 
troops in Korea and the Administration did the right thing by 
saying, no, we will not join the treaty. We have 
responsibilities as the United States that are not faced by 
other countries and as a consequence of that we have to act 
with all respect to the rest of the world. We on occasion have 
to act like we recognize that we are different, that our 
responsibilities are greater, and that the decisions we take 
are more immediately influential in terms of whether global 
stability is maintained or not.
    I don't like to dwell on it so much because the rest of the 
world is more and more, I think, resentful of the fact that we 
are what we are but without us and an ability to act when we 
feel we need to, the world is going to be a poorer place, not a 
better place. Thank you, Mr. Chairman.
    Mr. Bereuter. Thank you, Mr. Secretary. Without objection, 
all Members' opening statements, if any, with extraneous 
material will be made a part of the record. Hearing no 
objection, that will be the order. We will now proceed under 
the 5-minute rule, and I will recognize Members in order as 
they were here at the start of the hearing.
    Gentlemen, you make some very compelling points in varying 
details and degrees of specificity about the problems inherent 
in the Rome Statute creating the International Criminal Court. 
Does it follow from what you said that any International 
Criminal Court would pose very serious problems to the United 
States or is it just this International Criminal Court created 
under this treaty that would create those problems?
    To put it another way, would it be possible to have a 
permanent international tribunal or tribunals capable of 
pursuing serious war criminals that the United States could 
enthusiastically support?
    Mr. Eagleburger. Mr. Chairman, Mr. Bolton is the expert, 
the lawyer, on this. I would simply say to you certainly this 
treaty ought to be junked, ignored, whatever the point is. I 
suppose carefully drawn you could establish a treaty that 
would--and it would have some limitations, would have to have 
some limitations to it but that could at least move in the 
direction of being able to deal with war crimes.
    I think we would have to be very careful to make sure that 
it didn't limit our ability to act if we felt it necessary to 
act but I can conceive in general of such treaty. It seems to 
me Mr. Bolton is much more likely to be able to give you a 
useful answer.
    Mr. Bolton. Let me take a shot at it, Mr. Chairman. I 
thought about this a good deal and I don't think there is a way 
to create an International Criminal Court designed to do what 
this is doing consistent with our Constitution. And the basic 
problem is that the Court and the prosecutor, and I want to 
stress again that what we have got here is not simply a bunch 
of people in black robes dispensing impartial justice. In the 
institution of the prosecutor the Rome Statute creates a very 
powerful source of executive authority and takes it and just 
sort of puts it out there in the international context.
    Under our constitutional system, we are willing to accept 
prosecutors having the enormous authority they do because 
ultimately they are politically accountable. The Supreme Court 
has said, for example, that the Attorney General is the hand of 
the President in fulfilling the President's constitutional 
obligation to take care that the laws be faithfully executed 
and the authority of the President that flows from being 
elected by the citizens goes through the Attorney General down 
to U.S. Attorneys down to the lowest Assistant U.S. Attorney in 
any office around the country.
    That is a kind of accountability that we find important and 
in our system we have another kind of accountability. I just 
speak here as an alumnus of the Justice Department having 
testified before other committees in this House and on the 
other side. Congress exercises very intense scrutiny over the 
policies and practices of prosecutors at the Federal level. 
That is the kind of accountability and democratic legitimacy 
within our system that in the main we accept. But the 
prosecutor of the International Criminal Court doesn't report 
to any elected executive authority. He is not supervised by 
anybody except the Court itself.
    Now people say in Europe they do that all the time, and my 
response is that is one reason they are Europeans and we are 
not. We formulated a doctrine of separation of powers that said 
we are going to split the executive power, the power of 
prosecution, from the judicial power from the courts. That is 
fundamentally mixed together in this system. So, in effect, 
what the Rome Statute does is create centers of power out there 
in the international environment not subject to acceptable, at 
least in my view, constitutional or democratic limitations and 
gives them authority without accountability or oversight.
    I just find that unacceptable and for free people to find 
law being made in ways by other people are not subject to their 
ability to elect them or throw them out of office. Now, you 
know, Mr. Chairman, other governments have recognized this 
point and some governments are actually amending their 
constitutions to make sure that their constitutions are 
consistent with the Rome Statute.
    And I think because they correctly recognize that if the 
Court actually came into being effectively it would have 
authority over and above their constitution. I find that 
unacceptable for the United States as well. We have an 
acceptable democratic procedure here to amend our Constitution. 
People may like the results, may disagree on substance, but we 
got a system that works. And I think subordinating it to an 
ill-defined, unaccountable system larger than that is a risk 
that we should not take.
    Mr. Bereuter. Thank you, Mr. Bolton. My time is almost up. 
I would advise Members we are probably going to have time for a 
second round so I will now call on the gentleman from 
Connecticut, Mr. Gejdenson, for his 5 minutes.
    Mr. Gejdenson. Thank you, Mr. Chairman. I think we clearly 
agree that this generation of political leaders shouldn't be 
amending the Constitution. They probably wouldn't improve on 
what Jefferson and the others did originally. But it seems to 
me you put before us the choice, it is either war or law, and I 
think there has got to be something between there. And I guess, 
Mr. Bolton, you come down that we should deal with this as the 
United States dealt with Mr. Noriega and Israel dealt with Mr. 
Eichman, that we kind of go in and grab the people that we 
think should be put on trial and then we put together a system 
here and try them.
    Mr. Bolton. I think there are a variety of different ways 
in which this can be handled, and I can give you some specific 
example concretely today. In the case, for example, of 
Indonesia, there is a real question what to do with Indonesian 
military officers who are alleged to have committed war crimes 
in East Timor before, during and after the U.N. referendum. Now 
there is one proposal that says let us create another ad hoc 
tribunal, which would be necessary because the ICC doesn't 
exist yet.
    Let us create another international tribunal to try these 
allegations against the Indonesian military. The other 
alternative though is to have the Indonesian government try the 
Indonesian officers but I think this is----
    Mr. Gejdenson. I only have 5 minutes until I have to run up 
to another meeting. My problem is that the legislation goes 
beyond just concerns which we all have about this and I think 
there are reasonable concerns out here. But it prevents us from 
providing information in the case of a prosecution. The Court 
gets set up with or without us. These countries go and they get 
to whatever the magic number is, 60. They have 14 already. The 
Court is in operation.
    We have evidence that would put Milosevic away. What this 
legislation says is we can't give it to them. An American is 
prosecuted in the Court. It exists with or without us. We have 
evidence that is exculpatory. This legislation says you can't 
hand that evidence over. And for God's sake, if the Court is 
going to happen with or without us doesn't it make sense for 
the Administration to engage in at least a continuing dialogue, 
where let us assume it is going to be far from perfect.
    Let us even assume it is going to be bad. Isn't it a little 
mindless to say we can't let those people over in the 
Administration even talk about improving it. I think it 
undermines us internationally. It undermines us in practice 
because you will end up with something that is worse without 
our input. At the end of the day I may end up in the same place 
that you are, Mr. Eagleburger, and say, no, this doesn't work 
because of our singular role in the world. We need to not 
accept this at the moment.
    But how can you tell the Administration don't try to make 
it better, don't try to help prosecute a criminal, and don't 
try to defend an American who is being falsely accused. Mr. 
Eagleburger, I know you can answer this in a minute and 50 
seconds.
    Mr. Eagleburger. I can answer it in 10 seconds, Mr. 
Gejdenson. First of all, let me make the point with regard to 
Noriega and Panama and so forth. The ultimate choice for this 
democracy, the ultimate answer to the question of whether we do 
that or don't do it and how we answer for it rests in the hands 
of you people right here and the American people. When we do 
the Panama sort of thing it seems to me that is--because we are 
what we are and we are different than 99 percent of the rest of 
the world our political leadership is answerable to you and to 
the American people.
    That is to me a critical difference here. But, second, and 
the point that you asked about, why can't we continue to try to 
make this thing better or at least not so bad, and my only 
answer to you, Sam, excuse me, Mr. Chairman--Mr. Congressman, 
Mr. Gejdenson, whatever the proper term is--I haven't got you 
Chairman yet, not for a while.
    Mr. Gejdenson. It is hopefully prophetic but go ahead.
    Mr. Eagleburger. But anyway on that last point the issue it 
seems to me now is so clear that no matter what we do to try to 
make that treaty less bad in the end it is going to be so bad 
anyway that we are probably far better off right now to say we 
want nothing more to do with this and fellows, you better 
understand we are not going to accept its applicability to 
anyone that is a United States citizen.
    I admit to you, you can play around with it and try to 
change it if you can. Like, for example, trying to give 
information about whomever when some Court asks for it, and I 
don't mind that issue being dealt with if you can but I would 
say that it is still in my judgment far better. It says here I 
must stop and I will in 10 seconds. It is far better that we 
just simply say we wash our hands of this. There is no way it 
is going to turn out well under any circumstances and not 
playing around with it at all implies that we are prepared to 
deal with it.
    Mr. Bereuter. Thank you. The time of the gentleman has 
expired. Here in order at the beginning of the hearing, and 
then we will alternate across the aisle, Mr. Lantos, Mr. 
Hastings, Mr. Delahunt. The gentleman from California, Mr. 
Lantos, is recognized.
    Mr. Lantos. Thank you very much, Mr. Chairman. Let me say 
at the risk of embarrassing Secretary Eagleburger that in my 20 
years in this body I have never learned as much from anybody as 
I have learned from you nor have I respected anybody more than 
I have respected you. And since we are making these public 
concessions at least on my part, let me say I have never had 
more affection for anybody than you.
    Mr. Eagleburger. Mr. Chairman, could I ask if I could leave 
now? It can't get any better.
    Mr. Lantos. It is going to get better.
    Mr. Bereuter. Sorry, Mr. Eagleburger.
    Mr. Lantos. Let me say I am very pleased to see Mr. Bolton. 
I appreciate his testimony. I would like to take a different 
tact from my two friends thus far and I would like to ask the 
question, the basic question, of why we are dealing with this 
legislation, which is entitled the American Servicemembers' 
Protection Act. I tell you we are dealing with the legislation 
for very simple political reasons. In a few months we will be 
voting and our colleagues on the other side of the aisle would 
like some of us to vote against protecting American servicemen.
    This is a wonderful campaign commercial. It has great 
appeal. The only other thing that I could think would have 
greater appeal would be the American Mothers' Protection Act, 
and knowing the creativity on the other side within a week I 
expect the Majority Whip or somebody introducing that 
legislation. We will have hearings on it. It will be an 
atrocious piece of legislation and some of us will be compelled 
to vote against it.
    I am always interested, Mr. Chairman, in dealing with the 
agenda but I am also interested in dealing with the hidden 
agenda, and I am anxious at the outset to bring out the hidden 
agenda. The hidden agenda is to make those of us who in general 
have some sympathy for an International Criminal Court 
recognizing all of the reservations that our two guests have 
raised very properly to have us get on the record that we are 
against protecting American servicemen. That is the purpose of 
this legislation.
    Now let me deal with some of the issues you gentlemen have 
raised. Secretary Eagleburger, I fully agree with you that you 
and I are in total agreement on the issue that occasionally 
when necessary the United States must go it alone. This is in 
all national interests and it is in the global national 
interest and with respect to Yugoslavia while my preference was 
early action by NATO, I would have preferred early action by us 
to no action whatsoever. You are correct.
    Now this particular proposal does have some flaws but since 
you have highlighted some which are present let me, if I may, 
point to cases where with all due respect you may have 
contradicted yourselves. On November 16 appearing on Night 
Line, Secretary Eagleburger, this is what you said.

    I am not particularly clear on all of the arguments as to 
why we haven't joined International Criminal Court. My personal 
view is that those kinds of questions ought to be handled and 
that we should certainly enter into this Court precisely to 
begin to get at the kinds of problems in an orderly way that 
the Pinochet case demonstrates with regard to the need to do 
something about it but it certainly is disorderly at this 
point.

    I am not suggesting that there is anything wrong in 
changing your position. I have changed my position on many 
issues over the years as I have become wiser and more 
knowledgeable, and this is true of others. But I think it is 
important to realize that just 2 years ago your general 
position was that we ought to join the International Criminal 
Court, and you probably said that, Mr. Secretary, because while 
your point is very well taken that the majority of the members 
of the United Nations are dictatorial countries and how can we 
have those people serve on the criminal court when the 
leadership was not elected as ours was.
    May I remind all of us that at Nuremberg Stalin's 
representative participated as a full-fledged member of the 
Nuremberg trials. I welcomed Stalin's representative because 
certainly the Soviet Union earned the right to participate in a 
trial that dealt with Nazi criminals. This is not an ideal 
state of affairs and all of us, both you and all of us on the 
panel would like to see a world made up of only democratic 
countries but clearly that is not the case.
    And the fact that occasionally non-democratic countries may 
play a role and in the case of the Nuremberg trials played a 
very pivotal role, a very pivotal role, is in the nature of 
this very imperfect world we live in. Now I do believe--my time 
is up. May I just make one more point, Mr. Chairman. It is a 
self-serving point. I have legislation pending calling for the 
United States to rejoin UNESCO. Some years back properly we 
left UNESCO because we had some very severe reservations about 
UNESCO. I shared those reservations and I support the 
government's decision to pull out of UNESCO.
    Most of the problems, the most serious ones with UNESCO, 
have now been reasonably solved. There is still no willingness 
on the part of this Congress to rejoin UNESCO for reasons that 
escape me, and I think that there is a danger as we exclude 
ourselves from participating in international organizations 
which are admittedly flawed and imperfect and subject to 
improvement that we will create sort of a new kind of 
isolationism that rejects United States participation in 
legitimate international ventures which given the nature of the 
world are admittedly flawed. I would be grateful if both of you 
would react.
    Mr. Bereuter. The time of the gentleman has expired. 
Secretary Eagleburger, do you specifically have a question?
    Mr. Eagleburger. Yes, and I will be quick. Congressman 
Lantos, you are quite right on the television comment that this 
was focused then on specifically the Pinochet case 2 years ago. 
I feel so strongly and have all along that it was an absolute 
corruption of proper international law to have acted against 
Pinochet the way they did. And my point then was this is a 
disorderly system and what we are seeing now with regard to 
General Pinochet continue if we are not careful and perhaps 
with this Court we can regularize these things.
    Now 2 years later I am going to tell you I don't think--you 
know, I don't think the Court can do that. I do think that the 
Pinochet case does demonstrate the need for trying to find some 
way to regularize some way to incorporate into international 
law what I would consider to be appropriate means of dealing 
with the Pinochet problem and my basic point would be the 
Pinochet problem should have rested with the Chilean government 
and not much of anybody else.
    So I agree I said what I said. I think it was under 
different circumstances. Let me simply conclude again, Mr. 
Lantos, I agree with you the United States should not exclude 
itself under almost any circumstances. We are the world's 
leader and we better act like leaders. I don't deny that at 
all.
    I will, however, say that in this specific case as you look 
at the consequences and more important, frankly, sir, as you 
look at the process that has led to this kind of a decision to 
create this Court, which I find it so anti-democratic in its 
own way, maybe that is the wrong term, but at least I find it 
so much threatening in the last analysis, the very things that 
we hold dearest within the Constitution and the dangers that 
those will over time slide away that I just don't think this is 
a particular case for continuing to participate, but under 
normal circumstances I agree with you completely.
    Mr. Bereuter. I thank the gentleman.
    Mr. Bolton. Could I just make one very brief comment?
    Mr. Bereuter. Mr. Bolton.
    Mr. Bolton. I think it goes beyond the inappropriateness of 
non-democracies participating. You know, other defects of this 
Court include the absence of jury trial, the absence of a right 
of confrontation of cross-examination and at least in the minds 
of some real limitation on the protection against self-
incrimination. And debating with law professors over the past 
couple of years about that, I have pointed those things out and 
the response of many have been, ``Well, but in European systems 
of justice, various European systems, they don't have these 
provisions, and, you know, you got to have some European 
provisions and some American provisions.''
    I would have to say, Mr. Lantos, I don't accept that. I 
view this as so flawed in so many respects, the idea that a 
jury trial is not guaranteed or that a defendant doesn't have a 
right of confrontation of witnesses who are testifying against 
him, that violates fundamental precepts of our own justice 
system. I just think that it may be acceptable to Europeans, 
but it should not be acceptable to us.
    Mr. Bereuter. The gentleman from Massachusetts, Mr. 
Delahunt, is recognized.
    Mr. Delahunt. Thank you, Mr. Chairman. You would concede, 
however, Mr. Bolton, that the European system, while it isn't 
our system, at least thrives in a democratic society.
    Mr. Bolton. Sure. And the question is whether using aspects 
of their system that we have rejected for our own domestic 
purposes should be acceptable in the context of an 
International Criminal Court. And I think the absence of a 
separation of powers is----
    Mr. Delahunt. I share that concern. I find disturbing 
aspects of the European system but I don't think we just simply 
want to discredit European democracies and leave the impression 
that the legal system is undemocratic. Clearly, it is not. I 
mean you are right about a trial by jury and right of cross-
examination, etc., but I think Secretary Eagleburger--I think 
it maybe was you, Mr. Bolton, that just made the statement that 
we should act like leaders.
    I understand your concerns about this particular treaty but 
to get back to the legislation that has been submitted by the 
Majority Whip. I mean to insist that we do not prohibit us from 
collaborating in an investigation which would lead to justice 
as we could define it. OK. I conclude that you believe that the 
treaty itself, the ICC, is so flawed that we should just kill 
it.
    Am I wrong to infer that you see the legislation as a means 
to accomplish that because there are so many aspects to the 
legislation itself that are truly absurd such as lack of 
collaboration in an effort to bring Milosevic or someone to--
particularly if we possess information that can accomplish that 
particular goal, which we could agree to. I mean aren't there 
other ways to kill it rather than to do something that is 
hostile to what I think would be overwhelming, unanimous 
agreement about a particular pattern of heinous conduct?
    Mr. Bolton. Mr. Delahunt, let me address both the general 
and the specific, if I may. First, I think the legislation 
could be extremely useful to either this Administration or a 
subsequent Administration in convincing other governments not 
to ratify the ICC itself.
    Mr. Delahunt. Then you have answered my question. I think 
what you are saying is this is a message. We will take such an 
extreme stand that we want to kill it. What I think is, what I 
would suggest is I think a more honest and for us a more 
correct position in terms of what we stand for, OK, is to 
accomplish that goal through other means.
    Mr. Bolton. May I just continue because I think it is 
important. There are other aspects of this, whether the Court 
comes into existence or not, that in this legislation that 
gives even the Clinton Administration leverage in its 
negotiations with other governments on such things as status of 
forces agreements. You know, I am a creature of the executive 
branch; in a perfect world, I would have hoped that we wouldn't 
be in the fix we are in right now to begin with if the 
Administration had not led us into this swamp.
    But in the absence of that, I think it does help and does 
send a clear signal to other governments that really think the 
Administration is still trying to find a way to sign the Rome 
Statute, that this statement by Congress----
    Mr. Delahunt. I think I understand the position. In terms 
of deterrence, I think you indicated that there is no data in 
terms of deterrence. I served 20 years as an elected prosecutor 
myself up in the Boston area. I have always had a problem with 
the concept of general deterrence. We always hear about sending 
the message of deterrence. Sometimes there is no one listening 
to the message.
    This is simply going to happen no matter how draconian a 
particular sanction might be because there is nobody listening 
but--my experience always led me to conclude that the more 
sophisticated and the more educated do listen.
    Mr. Bolton. I didn't mean to say I don't believe in 
deterrence. What I am saying is this Court will not fulfill 
this function in much the same way that the International Court 
of Justice, which handles disputes between states, has fallen 
into such----
    Mr. Delahunt. Right, but I guess we have a disagreement 
there because it is difficult to survey what transpires in 
individual minds and how people reach decisions. But over an 
extended period of time, and I am not referring specifically to 
this Court, but if there were consistency decisions that were 
made might not well have been made if there were a deterrent. 
Secretary Eagleburger.
    Mr. Eagleburger. Basically, I am going to agree with you on 
the issue of deterrence. I think it does make a difference. I 
would only suggest to you that what I hope will deter the next 
Milosevic is not some Court but the fact that he is still 
cleaning up Belgrade and rebuilding bridges and so forth.
    Mr. Delahunt. Could I disagree with you. Let me tell you 
something. My experience has been that people like Milosevic 
are not necessarily concerned about cleaning up Belgrade. They 
are concerned about their own back.
    Mr. Eagleburger. No, you are quite right about Milosevic. 
All I am saying is the next time around, the next potential 
Milosevic, the fact that he caught a good bit of hell 
afterward, may be something of a deterrent----
    Mr. Delahunt. Let me again respectfully disagree. I have to 
tell you that my experience dealing with very sophisticated 
criminals is that they are only concerned about themselves.
    Mr. Eagleburger. I am not arguing that. I guess if I pin it 
quite so directly to Milosevic I can't make the argument. I am 
saying, however, that there are these pipsqueak leaders out 
here that if they see their country about to be very badly 
damaged may decide not to do something. However, whether that 
is an argument or not, I think we need to keep one thing very 
clearly in mind. Deterrent or not, when it comes to dealing 
with war crimes and trying to punish people for them, this will 
work perhaps with the little countries, but let me tell you, do 
you conceive possibly of bringing President Putin to the 
international court because of what he is doing in Chechnya, 
for example? Of course not.
    One of the things we need to keep in mind here is on the 
little wars the little countries maybe this makes a difference. 
It doesn't make a difference at all with the bigger ones 
because we will never get them to a Court.
    Mr. Bereuter. The time of the gentleman has expired. The 
gentleman asked for 30 additional seconds. Unanimous consent 
for 30 additional seconds.
    Mr. Delahunt. I thank the Chairman because I won't be here 
for a second round but I really do wonder if the Chilean 
government would have acted but for that out of control Spanish 
magistrate that you referred to.
    Mr. Bolton. You know, we just had an election in Chile and 
the new president who has come in had a different view of what 
to do with Pinochet and other military figures. This is 
something that has been the subject of ongoing discussion, not 
just in Chile but in Argentina and Uruguay, and a number of 
countries. And the point that I would make, and the point I 
wanted to make to Mr. Gejdenson about Indonesia, is that the 
Chileans may not do what you would do or what I would do. The 
Indonesians may not conduct the kind of trial you would conduct 
or I would conduct. But there is an element of national 
maturation and assuming democratic responsibility that they 
ought to be allowed to----
    Mr. Delahunt. I don't disagree with that but the treaty 
itself does provide for the retention of jurisdiction.
    Mr. Bolton. Well, hypothetically it provides what is called 
the doctrine of complementarity, which was made up for this 
Court. We don't know sitting here today in fact whether the 
resort to national courts will be permitted or not, even for 
the United States.
    Mr. Delahunt. But let us make it that way.
    Mr. Bereuter. The time of the gentleman has expired again. 
I will get into the matter of complementarity in the next 
round. The gentleman from American Samoa, Mr. Faleomavaega, is 
recognized.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I certainly want 
to compliment and thank both gentleman for their testimony this 
morning surely with tremendous eminence and history in terms of 
the important positions that they held with the previous 
administrations. I do have a couple of questions. It seems like 
what we are looking at on several fronts is that our national 
sovereignty seems to be in question concerning the proposed 
Rome Statute.
    Our Constitution allows us to conduct foreign relations 
with other countries, treaties and of the sort, which is why, 
for example, we are members of the United Nations. We live in 
the reality of a world where there seems to be a desire for one 
consistency, and perhaps that is the reason why so many nations 
of the world are motivated to establish an International 
Criminal Court.
    You can talk about Pol Pot and extermination of 2 million 
Cambodians. Nothing is done about that. You can talk about 
Stalin's extermination of 60 million Russians, if I am correct 
on my history on that. You can talk about--you mentioned 
Indonesia, Mr. Bolton. You can talk about the extermination of 
300,000, 200,000 East Timorees and 100,000 West Paupunig [ph] 
Indians by both Sukarno and Suharto and their dictatorship. You 
can talk about Rwanda. You can talk about Milosevic 
exterminating 250,000 Yugoslavians before we got involved in 
Bosnia.
    So if you are looking from that perspective, we haven't 
done anything as a world community. I took notice also in your 
statement, Mr. Bolton, where you said that Pinochet should have 
been handled by the Chileans. Why did we not allow Noriega to 
be handled by the Panamanians. We went over there and just got 
him out. It was in our national interest. I know that. I do 
agree with Secretary Eagleburger's statement everything and 
anything should always be our national interest and ought to be 
in terms of establishing a world court or being a member of the 
United Nations or whatever. It should always be in our national 
interest.
    But my question is what would the world have been like if 
we did not join as a founding member of the League of Nations, 
the United Nations, a member of the Security Council, and if 
you felt that we have compromised our national interest by not 
being members of these important organizations.
    Mr. Bolton. Well, I am a supporter of United States 
membership in the United Nations, and I have never been 
otherwise. The question with respect to the International 
Criminal Court is not the broad question of involvement in 
international affairs. The question is whether this is both a 
useful and a workable instrument to accomplish the goals that 
you are talking about. And for the reasons that I have stated 
before, and I won't repeat, I don't think it is.
    So it raises the question in the case of the International 
Criminal Court, as in the case of the International Court of 
Justice formed in 1945, which is simply not a player in 
international affairs today. The United States has withdrawn 
from the mandatory jurisdiction of the ICJ, and it simply has 
no impact because it has been politicized. The judges vote 
purely along political grounds, and I think it has next to no 
respect and certainly very little following in this country.
    What is striking about the ICC is that the argument that 
its proponents make are exactly the same arguments that were 
made in 1945 about the ICJ, and yet there is no new evidence 
that is adduced to show that this Court will be any more 
successful than the International Court of Justice.
    Mr. Faleomavaega. If I am correct, I think, and of course 
we have our constitutional procedures to follow, with the 
advice and consent of the Senate it so happens that this 
Administration accepts the ICC and what it purports to do at 
least to help. Are we jumping the gun perhaps that we ought to 
let the Senate follow its procedures and advice and consent and 
know exactly the specifics in terms of whether or not the Rome 
Statute should be applied to our own country.
    Mr. Bolton. I don't think so in this sense; other countries 
are considering at the moment whether or not to ratify, and 
only 14 have. You know, it has been 2 years since the Rome 
Statute was signed, so having 14 ratifications is not exactly 
moving with lightning speed. And I think that vigorous 
leadership by the United States could have an impact on the 
decisionmaking of other countries, so I hope Congress would go 
ahead.
    Mr. Faleomavaega. Well, one thing that I know for certain 
that our national sovereignty certainly I do not believe has 
been compromised in any way. This is the reason why we have not 
accepted the Law of the Sea Treaty. We have not accepted the 
Kyoto Treaties in terms of the global warming issues, the land 
mines as Secretary Eagleburger had stated earlier, much to the 
chagrin and protestations of many nations of the world about 
land mines.
    So I don't see where we are compromising our efforts by 
this Administration's efforts to see that our sovereignty is 
not compromised by the provisions of the Rome Statute. This is 
where I am having a little problem in trying to agree with you 
gentlemen and your concerns.
    Mr. Bolton. Secretary Eagleburger wanted to get in if he 
could.
    Mr. Bereuter. The gentleman may respond.
    Mr. Eagleburger. I just want to come back to one thing you 
said, sir, which is you mentioned the Noriega thing and we went 
and got him. This is in a sense precisely the distinction I was 
trying to make. You can argue whether we should have gone to 
get Noriega or not but the fact was he was in charge of a 
country. Pinochet had already been removed. We believed that 
Noriega was enough of a problem for us and for most Panamanians 
that we in fact needed to act unilaterally to get rid of him to 
get him out of there.
    All I am saying here is it is precisely that kind of action 
on the part of the United States, whether you agree with a 
specific act or not, that we must be careful to be able to 
preserve our ability to do. That is all I really was saying. 
And I think this treaty tends to act against our ability.
    Mr. Faleomavaega. So we should have done the same for 
Saddam Hussein?
    Mr. Eagleburger. No. Well, we don't want to get into that 
now, do we, really?
    Mr. Bolton. If we had him in custody.
    Mr. Bereuter. Many of us would feel more comfortable with 
unilateral action if in fact the President would seek the 
advice of Congress in a very formal fashion as they did in the 
Gulf War but that was not done in Bosnia. It was not done in 
Kosovo. And basically you have a decision ultimately made by 
one man as to whether or not the United States is going to defy 
international pressure and concern.
    Mr. Eagleburger. Mr. Chairman, that is absolutely correct. 
The ability of an administration to do what it should do with 
regard to consulting with the Congress is a different issue. I 
will say to you I think that with regard to the Kuwait war we 
worked very hard in fact to do the consultation before we 
acted.
    Mr. Bereuter. Well, indeed it happened and we had the 
longest debate in the history of the House of Representatives 
on that issue. Ultimately the Congress approved the President's 
decision to gather a multi-national force. The gentleman from 
New Jersey, Mr. Payne, is recognized.
    Mr. Payne. Thank you very much, Mr. Chairman. I certainly 
have a different opinion regarding this legislation. Actually I 
really have to admit that I did not read it carefully before I 
came here but just listening to the testimony, and that is why 
these hearings are so important, that I certainly am more 
awakened about how devastating this thing is in my opinion. I 
certainly am not a diplomat and have a lot of respect for 
Secretary Eagleburger and what his whole career has been.
    But I think we do have to be careful when we just say that, 
you know, there is no other people in the whole world like us. 
I mean if I were a Canadian, I would be a little upset, I 
guess, if my cousin lived in New York and I lived in Toronto or 
even some strong British friend that lives in London that has 
been supportive of U.S. policy and we had been partners.
    I would just feel a little uncomfortable, of course, even 
living in Lagos in Nigeria. But I think that one of the 
problems that we do have is that we do have to be the strongest 
nation in the world. We do have to preserve. We are the world 
power. There is nothing that we can do about that. And it is 
great and that God did shed his light on us and we got the 
purple mountains majesty from sea to sea.
    But there is the world and there are other people whose 
blood is red and eyes are blue and the rest. I think when we 
continually talk about only us outside--I think we are going 
down the wrong track when we just figure that we can build 
these missile defenses that come like 300 miles from the target 
and that we can stand alone, put another billion in and maybe 
you will get 200 miles from the target.
    We can't stand alone in this world and the quicker we 
understand, I think the better. That does not mean that we are 
weak. I mean this bill talks about cutoff aid to anybody who 
joins the treaty like the rest of the world, IMED or talking 
about any kind of assistance. This is one of the most 
ridiculous pieces of legislation I think I have seen. If you 
are talking about the United States with our 270 million people 
standing against the other 8 billion people in the world, you 
know, our grandchildren are going to have a very, very isolated 
life.
    And, you know, to be against everything, land mines, I 
still don't understand why we are against land mines. Who is 
going to walk down from North Korea to South Korea so you have 
land mines that--I guess land mines keep people from walking 
down. So I guess they are going to walk down from North Korea 
to take over Seoul. It makes no sense at all. It is a poor 
excuse. It is not even an excuse.
    We are even against--let me ask Mr. Bolton, are you in 
favor of the Decertification Treaty? That is the one that says 
the desert is coming down from the world and the world is 
drying up and that we ought to do stuff to prevent it from 
happening. The Senate has not ratified. Let me just ask. I want 
to ask. I know where you stand on ICC and Chow soldiers and 
land mines and all the other things. What about the 
Decertification Treaty? Have you looked at that one?
    Mr. Bolton. I have to confess I am not an expert on the 
Decertification Treaty.
    Mr. Payne. OK. We are against that too. We are against the 
desert coming down, taking--I mean it is amazing that the U.S. 
Senate--believe me, we are not supposed to speak about the 
other House, thank God, but this is just amazing. Now let me 
just ask one quick question since my time has probably almost 
expired. But, like I said, I didn't read this thing carefully. 
I don't want to say it too much. One of my opponents will take 
it off the record.
    But let me just ask this question. I just want to be clear 
about it. Now either one of you can answer this. Maybe 
Secretary Eagleburger will mention it. You believe the real 
risk of the Court is a politicized prosecutor or Court would, 
what do you call it, indict a high U.S. Government official 
ultimately responsible for alleged war crimes but not U.S. 
soldiers.
    There was this question about soldiers being given--that 
the one that said that soldiers should go somewhere, he would 
be indicted and not the ground troops.
    Mr. Bolton. Sure. If you read the provisions of the Rome 
Statute dealing with who is liable for alleged war crimes or 
crimes against humanity, it clearly permits the responsibility 
be taken up the chain of command, and that those who ordered 
the activity in question or in some circumstances those who 
knew about the activity or should have known about the activity 
can be liable as well. So this is far from a hypothetical. I 
think it is a very real intent of those who drafted the Rome 
Statute.
    Mr. Eagleburger. May I make----
    Mr. Payne. Yes.
    Mr. Eagleburger. I would make one point here, which is 
again I basically agree with most of what you said. I have to 
make a distinction between--let me reverse myself there. There 
is no question that one of the problems we will face as we go 
into this next century is a neo-isolationist attitude in this 
country and we have to be very careful of it and that means 
most of the time we have to participate. I am not arguing any 
of that. In fact, I think it is a big danger that we may in 
fact try to isolate ourselves.
    However, it is in this specific case and only this case 
that I would argue otherwise, and I argue it not simply on the 
basis of the examples that you and Mr. Bolton have talked 
about, namely, an unruly prosecutor or whatever. I have made 
the point and I will just make it one more time and then I will 
shut up, but my point is in my judgment there is a critical 
factor here that we are all ignoring, which is this the way to 
make legitimate international law where a group of countries 
get together and without the responsibilities the United States 
has and will have to have whether we like it or not draw up 
this treaty which will, if nothing else, make it more difficult 
for the United States to do what it feels it has to do 
internationally to maintain stability in the future.
    And I worry, I don't want to get the United States as the 
world's policeman but on the other hand I don't want to lock 
our hands any more than we have to in terms of our ability to 
act when we feel we must in the coming decades. And one thing 
this country has that not an awful lot of other countries have 
is that when decisions are made by the executive in the end 
there is the check of the Congress and the check of the 
American people, and they vote, and that to me makes a great 
distinction between us and an awful lot of the rest of the 
world.
    Mr. Bolton. Mr. Chairman, could I just make one more point 
very quickly in response to Mr. Payne? Mr. Payne, I am sure you 
remember the tragic case of Colonel Higgins, who was a U.S. 
officer assigned to the U.N. Troop Supervisory Organization 
headquartered in Jerusalem who was captured by terrorists in 
Lebanon when he was serving there. And he was brutally tortured 
and killed in the late 1980's, 1989. Colonel Higgins was 
selected out of the 30-plus governments represented in UNTSO by 
military officers, selected quite clearly because he was an 
American. There is no doubt about it.
    And that is why, for example, the provision in this bill 
section 5 on restricting American participation in 
peacekeeping, unless the Americans involved were protected 
against the jurisdiction of the International Criminal Court I 
think is a real and important point, and goes to the question 
of why we are treated differently than the Canadians. Thank 
you, Mr. Chairman.
    Mr. Payne. Yeah, just in response to that. There is no 
question that we always are going to be treated differently. 
You all made that case, which I agree. We are a super power, 
the only one. But I do think that to the extent of what this 
legislation talks about about restricting, for example, IMED, 
or other kinds of--any kind of assistance to any country that 
becomes a party to this, we are really, I think, treacherously 
going down the wrong path.
    Mr. Bereuter. I thank the gentleman. I would recognize 
myself now for an opportunity to, with my colleagues and their 
opportunity forthcoming, wind up with a few questions to you 
that I think ought to be asked. I have two with a third 
comment. The Clinton Administration is trying to get the ICC to 
forego criminal jurisdiction over Americans and persons of 
other countries that are not signatories to the Rome Statute.
    First, how do you assess their prospects for success, and 
if they do succeed do you think that American servicemen and 
other governmental officials will in fact be safe from 
prosecution by the ICC? Second, we have had the subject of 
complementarity come up. It is imbedded in the Rome Statute. 
How does complementarity work, Mr. Bolton? I think that might 
be best addressed to you. Describe for us how it might protect 
an American president or a Secretary of State or a Member of 
Congress against prosecution by the ICC.
    Third, I would just observe if you have any comment on the 
observation that Israel did not sign the Rome Statute. Now you 
would expect that a country with direct experience and its 
people with genocide would feel compelled to stay outside an 
institution that is ostensibly designed to punish and prevent 
genocide and other war crimes. Do you have any insight about 
that? And I call on each of you to respond to that part that 
you feel most comfortable in addressing.
    Mr. Bolton. Mr. Chairman, perhaps I could go first. On the 
subject of the Court's jurisdiction over Americans the Clinton 
Administration negotiated very hard in Rome to try and carve 
out exemptions from the Court's jurisdiction so that states 
that did not sign the Rome Statute could not have their 
personnel subjected to the jurisdiction of the International 
Criminal Court. It was an issue that was explicitly raised. It 
was explicitly rejected.
    Now I have followed the Administration's work in the 
various U.N. preparatory commissions as they tried a variety of 
different ways to get out from under that problem, and 
specifically the latest thing they had been negotiating under 
article 98 of the Rome Statute having to do with not simply 
jurisdiction but the physical act of surrendering a defendant 
to the authority of the Court. I think the chances of their 
negotiating successfully to get the kind of exemption that they 
are trying to get are close to zero; the reason is that to get 
the exemption that they were denied expressly in Rome, you 
would have to assume that the other states party to the treaty 
had either gone to sleep, or had given up their objection.
    I don't see any possibility that that is going to happen. I 
think this is an exercise that is doomed to failure. What they 
have achieved so far, at best, can be described as ambiguous, 
and it is because people know that the next stage is 
potentially dispositive. But even if they got something like 
what they have achieved already, bearing in mind that the 
ultimate decisionmaking authority over rules of evidence and 
elements of crimes for the Court is the Court itself, I think 
it is very, very unlikely that the Court is going to rule 
against a basic decision taken at Rome over the 
Administration's objections. So I think this entire effort, 
quite frankly, is a waste of time.
    Mr. Bereuter. Mr. Bolton, just to set the context here 
again for the second question. Some supporters of the ICC say 
that the concept of Americans being prosecuted is overblown and 
they point to complementarity imbedded in the Rome Statute as 
the reason for their comments so now can you take on what 
complementarity does, how it is supposed to work?
    Mr. Bolton. Mr. Chairman, the theory of complementarity, 
and I stress the theory of complementarity, is that in the 
first instance the Court would defer to the national judicial 
systems of countries of defendants alleged to have committed 
war crimes. In theory, it is only when that system fails to 
function or functions inadequately that the prosecutor would 
step in. First, Mr. Chairman, we have absolutely no experience 
with this doctrine in practice. This is nothing but a 
prediction based on hope, not on experience.
    And, second, if you actually read the provisions of the 
Rome Statute that embodied the principle of complementarity, I 
think you can see the ambiguity. And I will just very quickly, 
if I may, read one where it says the Court will not take 
jurisdiction over a case where a state has investigated an 
alleged war crime, and now I am quoting from the Rome Statute, 
``and where the state has decided not to prosecute the person 
concerned unless the decision resulted from the unwillingness 
or inability of the state genuinely to prosecute.''
    So let us say that a prosecutor, a military prosecutor in 
this country, looked at a particular circumstance and made a 
decision for lack of sufficient evidence or whatever that the 
prosecutor was not going to proceed against a particular 
American serviceman. It is up to the International Criminal 
Court to say whether they accept that or not whether the state 
genuinely decided not to prosecute or whether it was just 
unwilling to.
    What that means is that the theory of complementarity is 
ultimately dictated in reality by the decisions of the 
International Criminal Court and that is a cession of authority 
and sovereignty to an as yet unestablished, untested Court that 
I find excessively risky, and not just in the case, Mr. 
Chairman, of a GI, but in the case of our top national 
decisionmakers. That is what I am really worried about.
    Mr. Bereuter. Thank you. Mr. Eagleburger, Secretary, do you 
wish to address any of those or do either of you wish to 
address or speculate why Israel did not sign the Rome Statute?
    Mr. Bolton. Could I maybe take a shot at Israel and then 
let Larry handle the rest of it. The particular provision that 
Israel was concerned about was in the statement of offenses 
contained in the Rome Statute for war crimes. There is 
language, and I won't get into detail here, but language that 
basically changed the applicable language from the fourth 
Geneva Convention in a way that made it much more likely that 
Israel could be, and its practices in the occupied territories 
of Gaza and the West Bank, could be subject to prosecution.
    Now this sounds like it is just a technical kind of dispute 
over the movement of persons by an occupying power into 
occupied territories, which is what the U.S. position about 
Gaza and the West Bank has been consistently since 1967. But 
really, Mr. Chairman, this shows exactly the risk of 
politicization inherent in the International Criminal Court. To 
me it is only a question whether the first complaints filed by 
the prosecutor are going to be against Israel or the United 
States. It will be a real race to the courthouse door.
    And the states that wanted this changed provision in the 
definition of war crimes were exactly Israel's political 
opponents. And what will happen, and one of the reasons Israel 
was concerned about it, and I think quite properly, is that it 
was just a setup way for score settling, not a true search for 
justice in any meaningful sense of the word, but a way to carry 
on military and political conflict through ostensibly legal 
means.
    Mr. Bereuter. Thank you. Mr. Secretary, do you wish to 
comment?
    Mr. Eagleburger. No.
    Mr. Bereuter. The gentleman from Massachusetts is 
recognized for 5 minutes if he has further questions.
    Mr. Delahunt. I won't take my whole 5 minutes but thank 
you, Mr. Chairman. I agree with you, Secretary Eagleburger, in 
terms of the concern about the return of isolation. I think we 
are at the point where the global economy is not going to allow 
it anyhow. You keep referring to making international law. By 
that I presume you are talking about procedural law because I 
don't see--I mean of course as decisions would come presuming 
that the Court ever came into existence, it would establish a 
certain level of precedent and stari decisis, if you will.
    But what I see it more is establishing an infrastructure. I 
don't think that is making international law per se. At least I 
want to be more clear in terms of where you are coming from on 
that.
    Mr. Eagleburger. You are correct, sir, in the sense that it 
is at this stage procedural but let me try to make my point 
this way. I understand, for example, that with regard to the 
mining treaty, for example, that there are now people who 
including the lady here in the United States whose name I can't 
remember, who are arguing that once that treaty was established 
even though the United States did not sign it, it is now 
international law.
    Now, OK, you can argue that that is stretching the point 
and that she won't make her point. My worry is that in fact she 
will over time. If you take a look at what has happened, I 
think in terms of thinking about war crimes and how we deal 
with issues like the mining treaty, there is a growing tendency 
on the part of those who are advocates of that kind of approach 
to argue that once it is done then 5 countries agree with it or 
15, it is now either international law or close to it.
    And if we go ahead with this criminal court, it seems to me 
that, yes, it is procedural in what we are debating now but I 
think there is a real worry that it becomes much more than that 
as it begins to, I would say, build decisions which will lead 
to differences in itself.
    Mr. Delahunt. With due respect, I think that would happen 
anyhow even in terms of the ad hoc tribunals that are in 
existence now. What I suggest is that is going to happen 
whether the ICC comes into existence or whether the ad hoc 
tribunals, whether they deal with Rwanda or the Yugoslavian 
one. I think we are building up a body of international law. 
But let me go to Mr. Bolton for a minute.
    You made reference to the European court on human rights 
and some suit that appeared to be frivolous that was brought 
against Britain. I mean in any system, any legal system of 
justice, I think we are going to always have to anticipate 
frivolous assertions and allegations. I mean we never are going 
to design the perfect system. I guess what we are looking for 
is less than perfect, as much imperfection as we can deal with.
    I think that you, Mr. Bolton, point out the most legitimate 
concern, and that is the issue of prosecutorial accountability. 
But don't we have the capacity to design a system that deals 
with that particular issue, the concerns I think that you 
justifiably raise because I am sure in your experience and in 
mine, we have both observed prosecutors who abuse that awesome 
power, the power to deprive individuals of their liberty.
    But whether it be some sort of oversight mechanism, whether 
it be length of term, whether it be the appointing authority, I 
mean what I suggest is that, you know, within the wealth and 
the abundance of our experience there are ways to deal with the 
issue of prosecutorial accountability.
    Mr. Bolton. That is entirely correct. In this country we 
call it democracy. The legitimacy that prosecutors have flows 
from the fact that they are ultimately politically accountable 
to elected officials. That is not the case for the prosecutor 
in this Court. He is ultimately accountable first to the Court 
itself, which is a system of allocating power that we have 
found unacceptable in this country since the framing of the 
Constitution, and, second, ultimately to 140 or more states 
party to the agreement.
    That is like saying the General Assembly of the United 
Nations is responsible for the prosecutor. I don't think 
anybody could argue that is going to work.
    Mr. Delahunt. OK. I mean, again, just to take that, I mean 
whether it is the Security Council that has authority over the 
Court at some point in time, unanimity, if you will, would be 
required.
    Mr. Bolton. But, Mr. Delahunt, I mean that is a very 
important point. The original position of the Administration 
was that the prosecutor of the ICC could only be triggered by a 
resolution, by an affirmative decision of the Security Council, 
and that was rejected. Had that provision been in the treaty, I 
still wouldn't support it but a lot of other people would have 
because----
    Mr. Delahunt. All right.
    Mr. Bolton. Now could I just make one other real quick 
point?
    Mr. Delahunt. Of course.
    Mr. Bolton. On the question of frivolous charges, the 
subject of Kofi Annan's remark is not frivolous. The man is the 
Secretary General of the United Nations and whether you agree 
or disagree with him when he speaks about the authority of the 
Council you have to take it as seriously reflecting some 
people's views. He wasn't the only U.N. official to speak about 
the legality of NATO's air campaign over Yugoslavia.
    And I want to say I opposed that campaign as a matter of 
policy. But the U.N. High Commissioner for Human Rights, Mary 
Robinson, said with respect to the NATO bombing that it was 
unacceptable that NATO ``remains the sole judge of what is or 
is not acceptable to bomb.'' And she went on to say ``It surely 
must be right for the Security Council of the United Nations to 
have a say in whether a prolonged bombing campaign in which the 
bomber choose their targets at will is consistent with the 
principle of legality under the charter of the United 
Nations.'' She is a former president of Ireland and she was 
saying those things so----
    Mr. Delahunt. I take with great credibility any statements 
by former presidents of Ireland.
    Mr. Bolton. I am sure you do.
    Mr. Delahunt. I want you to know that, Mr. Bolton.
    Mr. Eagleburger. I wish she hadn't made the point.
    Mr. Delahunt. That is right.
    Mr. Bolton. But that is why the Belgrano litigation is not 
frivolous and I don't think Mrs. Thatcher and her government 
take it as frivolous.
    Mr. Delahunt. I think Mrs. Thatcher has left the 
government----
    Mr. Bolton. Former government.
    Mr. Bereuter. The time of the gentleman has expired. Let us 
avoid Irish politics here, if we can. The gentleman from New 
Jersey, Mr. Payne. Do you have any further questions or 
comments?
    Mr. Payne. Just a brief comment. I know the gentleman and I 
agree with him on the statements from Irish former presidents. 
The question though about the fact, and I hope too that 
isolation won't come about, and he said that because of global 
economy it will. He feels that we don't have to worry about 
that isolation business. You have to recall that it was in the 
1930's when there was a big depression in Germany that Hitler 
decided he needed to do something to divert attention so if we 
ever get back to a down turn, you know, in economies then that 
makes it even more dangerous as we stand alone and build this 
big wall around the United States
    As a matter of fact, as you may recall, there has been 
legislation put in the bill--you know, a fence in Texas to keep 
Mexicans out. I mean just build a fence on the whole border. 
That way we won't have illegal immigrants. So we get to the 
point where sometimes we really have to question it. That has 
nothing to do with this but let me just ask this question and 
maybe it has been answered, Mr. Bolton.
    What situations in the recent past, you just mentioned the 
NATO business, do you think that this International Court of 
Justice would have prosecuted the President of the United 
States or some high official?
    Mr. Bolton. Well, let me take the example of the NATO air 
campaign over Yugoslavia, which was not approved by a 
resolution of the Security Council and in fact I think the 
Administration correctly judged that if they had taken it to a 
vote in the Security Council it might well have been vetoed by 
both Russia and China. The question of both the general 
legality of the campaign and the subject of the specific 
bombing targeting decisions and actions by NATO were considered 
by the prosecutor for the Yugoslav tribunal and in effect, 
although she declined to prosecute, she concluded that she had 
jurisdiction at least over the operational aspects of the 
matter.
    And I think that is the kind of thing that we should have 
considerable pause on. If mistakes were made by NATO officials, 
by American officials in the conduct of that air campaign, we 
have, and quite properly so, mechanisms in the military justice 
system in this country to deal with that and to allow our 
senior officials to be exposed to second guessing after the 
fact and possible prosecution for that seems to me to be 
unacceptable.
    Let me give you another example. There has recently been 
controversy over an engagement that took place at the end of 
the Persian Gulf War when General Barry McCaffrey and his 
forces destroyed an Iraqi tank and armored personnel column. 
And there has been a lot of discussion about whether he acted 
in violation of the cease-fire or not. I remember that from the 
last days of the war where I saw the cable at the time about 
that engagement, but I could easily see a prosecutor saying, 
well, I would like to look into that and I think McCaffrey may 
be subject to indictment for having violated the terms of the 
cease-fire and therefore having committed a war crime under the 
Rome Statute.
    McCaffrey, under the statute as presently drafted would be 
subject to the jurisdiction of the Court. Now I don't think 
McCaffrey did anything wrong at least based on what I know but 
what I do know is that the United States has a fully 
functioning military justice system that can deal with it if he 
did.
    Mr. Payne. Just finally the question about extradition. By 
us not being a part of the worldwide system, for example, you 
may recall that one of the perpetrators [genocidaires (ph)] in 
the Rwanda genocide where, between 500,000 and 1,000,000 people 
were killed and that was it was planned, and of course as you 
may recall no one in the world wanted to act.
    One of the genocidaires came to the United States and was 
in Texas for a year, year and a half, but because of this ICC 
potential and the fact that we did not feel that we could 
extradite him because it would set a precedent, you know, we 
could become the haven, I guess, of people that want to slip 
into the country, we were bound then to harbor a person like 
this who is responsible for the deaths of thousands and 
thousands of people. He sat in Houston, TX, or somewhere and 
may still be there. How do we prevent that kind of business 
from happening?
    Mr. Bolton. Well, I think the question of that particular 
extradition proceeding had to do with the question whether the 
applicable treaty provisions really governed an institution 
like the ad hoc tribunal, but I think the purpose of the 
legislation, as I understand it, by precluding agencies of the 
government at all levels, Federal, state and local, from 
cooperating is to demonstrate the seriousness of American 
opposition and I think that is a very important point to make.
    And we are not alone in having concerns about extradition, 
particularly of citizens of countries to something like the 
International Criminal Court. One of the reasons for Latin 
American countries in particular why ratification has been so 
slow in coming is that those countries in many cases have 
constitutional provisions that prohibit their citizens from 
being extradited for trial in another country and they are 
facing now looking at the provisions for surrender to the 
International Criminal Court whether they actually have to 
amend their constitution. So this is not a problem that is 
peculiar to the United States.
    Mr. Bereuter. The time of the gentleman has expired. I have 
a few concluding comments as I adjourn but before we do that, I 
want to recognize the gentleman from California, Mr. Berman, 
for the 5-minute rule, if he has any comments or questions.
    Mr. Berman. Thank you, Mr. Chairman, and it is good to see 
you, Mr. Secretary, Mr. Bolton, and I apologize for not being 
here for your testimony and the earlier questions. Mr. Bolton, 
you just said in response to a question by Mr. Payne under the 
statute McCaffrey might be subject to prosecution for war 
crimes. What statute?
    Mr. Bolton. The Rome Statute, the substantive provisions, 
not retroactively. I am using that as an example prospectively 
of conduct during the course of warfare that would be subject 
to possible oversight by the prosecutor.
    Mr. Berman. And who passed this statute, this Rome Statute?
    Mr. Bolton. The Rome Statute was signed by over 100 
countries in Rome. It has been ratified so far only by 14.
    Mr. Berman. And the United States did not sign?
    Mr. Bolton. That is correct.
    Mr. Berman. And how many ratifications are needed before--
--
    Mr. Bolton. Sixty.
    Mr. Berman. Sixty. Let us assume 60 parliaments around the 
world ratify. Now we have an International Criminal Court to 
pursue into this statute. This bill goes beyond prohibiting the 
United States from signing the treaty, as I understand it, or 
convention. Is that----
    Mr. Bolton. It is called the Rome Statute. It is a treaty.
    Mr. Berman. But it also seeks to prohibit our cooperation 
with the International Criminal Court.
    Mr. Bolton. Right.
    Mr. Berman. Let us assume it is ratified and Milosevic, for 
example, is apprehended and brought to trial for different 
kinds of war crimes and the United States has evidence that 
would be useful in that prosecution. Why would we beforehand 
want to say that no matter what the situation, no matter what 
the circumstances, no matter whom we are talking about, if this 
is the place where he is being brought to justice, we are not 
going to assist in the prosecution of him?
    Mr. Bolton. Well, I think there are three reasons for that. 
The first deals with the question whether or not the evidence 
is classified or not. Now let us assume for purposes of this 
discussion that it is unclassified. The reason not to cooperate 
even in the case of Milosevic is to demonstrate beyond any 
question to any other state party to the treaty that we do not 
accept the legitimacy of the Court.
    We don't accept legitimacy for all the reasons we have been 
discussing here for the past couple of hours which I won't 
repeat but that is to emphasize and underline the strength of 
the United States view. That is point one. Point two, if we 
have evidence, other people might have evidence as well. It is 
not like it is, at least on an unclassified basis, that we are 
saying the Court can't get any evidence at all.
    We are simply saying for our perspective we are 
unilaterally not cooperating with the Court, but I think the 
more difficult circumstance--and the proposed legislation also 
covers this--which really would trouble me is where we had 
classified information. And I don't have any trouble at all in 
that circumstance saying, ``Of course we are not going to turn 
over classified information to a Court like that; that could 
compromise sources and methods that we couldn't permit to be 
used in the prosecution of Milosevic without compromising our 
own intelligence efforts.''
    Just as you are very familiar with, I am sure, in this 
country where we have evidence against terrorist activity in 
this country that is obtained that we can't use in a 
prosecution in Court.
    Mr. Berman. No one is talking about a statute that compels 
cooperation with this International Criminal Court.
    Mr. Bolton. No, but it is to prevent the cooperation from 
an Administration that has demonstrated by its every action 
that it wants to do exactly what would be prohibited by this 
legislation.
    Mr. Berman. I think that is quite a statement. You are 
saying that this Administration apparently would want to 
compromise sources and methods----
    Mr. Bolton. No, no, no. Come on, Congressman Berman.
    Mr. Berman. That is what you said.
    Mr. Bolton. What I said was that the Administration has 
demonstrated repeatedly it would love to sign the Rome Statute 
if it could figure out how to do it and it wants to cooperate--
--
    Mr. Berman. I don't understand what you mean. Do you mean--
--
    Mr. Bolton. It is testified publicly that it would seek to 
cooperate with the Court in every occasion that was possible 
and I think that is one of the reasons it has given rise----
    Mr. Berman. Well, if it would love to sign the Rome 
Statute, why doesn't it?
    Mr. Bolton. Because it recognizes, No. 1, there is 
opposition in the Pentagon, and, No. 2, it would be dead on 
arrival in the Senate.
    Mr. Berman. As opposed to the Comprehensive Test Ban Treaty 
or any of the other treaties that have not been ratified by the 
Senate?
    Mr. Bolton. I am not aware of a single Senator who has 
endorsed the Rome Statute as currently written. Perhaps you 
are.
    Mr. Berman. I would like to know of--I am not saying we 
should sign the Rome Statute. I would like to understand why we 
should have a provision that prohibits any Administration, not 
just this Administration, any Court--you can talk about a 
deposition at a trial where you need the original transcript of 
that deposition to impeach a witness there and, as I understand 
it, this prohibits any state or local government and presumably 
any branch of any state or local government or Federal court 
from providing upon request certified copies of transcripts of 
testimony given in a Court to the Criminal Court for the 
purposes of aiding in the prosecution of someone that there is 
a consensus we feel has engaged in war crimes activity.
    It seems like in order to limit your fears about what might 
happen, you are tying the hands in allowing things that could 
happen in a form that we would prefer didn't exist but does 
exist. It has legitimacy in that a certain number of nations 
have signed it and have given it that legitimacy. We don't have 
to accept it or make our folks subject to it or participate in 
it to say that, you know, under the principle that even a 
stopped clock is right twice a day. There may be some 
situations where we want the flexibility to let the only 
possible way in which somebody could be brought to the bar of 
justice for that to be a successful operation. It just seems 
like an overage here.
    Mr. Bereuter. The time of the gentleman has expired.
    Mr. Smith. Mr. Chairman.
    Mr. Bereuter. The question has been asked several times and 
it may well be a question that the legislative body will have 
to address when we take up this matter.
    Mr. Smith. Mr. Chairman.
    Mr. Bereuter. Yes. I did say I would conclude the hearing, 
but I do recognize the gentleman from New Jersey.
    Mr. Smith. Thank you very much, Mr. Chairman. Two bills 
that were on the floor, one Veterans and one dealing with the 
issue of capital punishment precluded my being here so I missed 
what I am sure was very eloquent testimony from two good 
friends, Secretary Eagleburger and Secretary John Bolton. Let 
me just ask unanimous consent that my full statement be made a 
part of the record, Mr. Chairman, and just make a couple of 
observations.
    I was at the and led the delegation, was head of the 
delegation at the OSCE parliamentary assembly in Bucharest just 
a couple of weeks ago and there was an issue dealing with the 
International Criminal Court and there was a resolution to try 
to get states to ratify it, to accelerate ratification. Our 
delegation took the view of either abstaining or voting against 
it. I spoke very vigorously against the resolution and did so 
not because I am not for international criminal tribunals.
    As a matter of fact, our Subcommittee on International 
Operations and Human Rights took a back seat to no one nor did 
the Helsinki Commission when we were talking about the creation 
of the Balkans war crimes tribunal. As a matter of fact, I 
offered amendments to increase the amount of money donation 
from the U.S. Government to try to accelerate that very 
specific war crimes tribunal and did likewise for the tribunal 
dealing with Rwanda and the genocide that took place there.
    The problem with the Rome treaty, as I see it, is a lack of 
definition. The fact that the article 5, the crime of 
aggression, isn't even defined yet and yet it is included and 
countries are being asked to ratify and the fact that there is 
immense elasticity with definitions in other areas means that 
this is ripe for political manipulation. The fact that the 
prosecutor's office can accept the work of NGO's, and again I 
take a back seat like the Chairman and like others, NGO's play 
a very fine role.
    But the independence of a prosecutor should be just that. 
He or she should have the ability and the capability in terms 
of assets to very vigorously go after a real bona fide war 
crime. But again we are dealing with language that is very, 
very imprecise and I think that we need to look at this very 
carefully. Finally, Mr. Chairman, I am concerned about the 
impact this might have on peace keeping and peace making.
    I think any Commander-in-Chief would be loathe to send our 
men and women into harm's way believing that there could be a 
very frivolous but very mischief-making assertion of war crimes 
being asserted against our men and women if they take out a TV 
tower, for example, and that is construed not to be a military 
assess even though it is putting out propaganda and calling 
people to a war-like footing in that country as did Milosevic, 
and yet some people might say, oh, that should be off limits.
    This is a very, very problematic area. We need to go slow 
and where there are war crimes, like I said, there needs to be 
at least ad hoc tribunals convened, but there is some very real 
reason for pause with regards to this. And again I would ask 
that my full statement be made part of the record and thank our 
good friends for being here today.
    Mr. Bereuter. Without objection, that will be the case. I 
thank the gentleman for his excellent statement. I am in 
agreement with what he said. As we conclude these hearings, I 
want to thank first of all the witnesses for the time that they 
spent with us and for the way they have addressed our 
questions. I am very concerned about the statement made by the 
Secretary General that is a quote in your statement, Mr. 
Bolton.
    I have known this gentleman for a long time before he was 
Secretary General. I have great respect for him. But I think 
there is something that is happening gradually and it is very 
insidious with respect to our sovereignty. We have heard such a 
great amount of warped rhetoric about loss of sovereignty that 
sometimes we may not recognize it when it is happening. And I 
would say that there is no way that the United States should 
accept the legitimacy of the ICC if it is established.
    Since I spend a lot of time with European institutions, I 
have found over the last few years that what has happened with 
European nations that are members of the European Union, for 
example, is that they have gradually given parts of their 
sovereignty to the commission, and it has become the accepted 
norm. We have seen, as one of you pointed out, with respect to 
Yugoslavia how action probably could not have been taken with a 
U.N. resolution in the case of intervening in Kosovo.
    Now I, too, disagree with what happened there as a matter 
of policy, but I do believe that we would find ourselves in a 
stalemate. Increasingly, in the NATO Parliamentary Assembly, we 
have votes now which makes it clear that the Europeans by and 
large today--NATO members of Europe and EU members--think of 
the United Nations as a super-national body to which should be 
given or in some cases assenting to the gift of elements of our 
sovereignty. That is something that is very serious.
    Mr. Lantos raised questions as to whether or not this 
legislation which is in part the subject of this hearing, 
certainly prompted it, is offered for partisan reasons or for 
partially partisan reasons. That is a legitimate question to be 
asked. But we had a number of questions also raised as to 
whether or not we should attempt to amend the legislation to 
address it so that proper consultation and assistance might be 
offered and whether or not if we refine relief so that non-
signatory citizens would not be subject to the jurisdiction of 
the international court this would be acceptable.
    On the other hand, we have presented to you the suggestion 
that this is a way of saying that the United States is so much 
and so fundamentally opposed to the ICC that this would be a 
way of demonstrating on the part of Congress that the 
Administration has no further mandate if they had one at all 
from the Congress to proceed with attempting to fix the 
problems that we see within the ICC.
    Gentlemen, you have been helpful to us in sorting through 
some of these issues. We are prepared to hold a hearing on this 
same subject when we hear from the Administration tomorrow, and 
we are looking forward to that as well. And in closing I ask 
unanimous consent to include in the record statements submitted 
on behalf of the American Bar Association and the Lawyers 
Committee for Human Rights. The Committee is adjourned.
    [The aboved-mentioned statements appear in the appendix.]
    [Whereupon, at 12:13 p.m., the Committee was adjourned.]


     THE INTERNATIONAL CRIMINAL COURT: PART 2--RECENT DEVELOPMENTS

                              ----------                              


                        WEDNESDAY, JULY 26, 2000

                          House of Representatives,
                      Committee on International Relations,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:30 a.m., in 
room 2172, Rayburn House Office Building, Hon. Doug Bereuter 
presiding.
    Mr. Bereuter. The Committee will be in order.
    Today we hold the second of two hearings on the 
International Criminal Court. Yesterday we heard from two very 
distinguished former executive branch officials, former 
Secretary of State Lawrence Eagleburger and the former 
Assistant Secretary of State for International Organizations 
John Bolton. They both testified about the very serious dangers 
to our national interest arising from the International 
Criminal Court in their judgment, and they urged Congress to 
begin to remedy this situation by approving H.R. 4654, the 
American Servicemembers' Protection Act of 2000.
    As I noted at the outset of yesterday's hearing, there are 
many strongly held opinions about the International Criminal 
Court and many passionate disagreements.
    The one thing that virtually everyone agrees on, however, 
is that the way this issue has evolved over the last few years 
has been nothing short of disastrous from the point of view of 
the national interest of the United States.
    Today we are well on the way, it appears, to the 
establishment of a U.N.-led criminal court, which will claim 
the jurisdiction to prosecute and imprison American 
servicemembers and other officials of our Government in certain 
instances, irrespective of whether the United States every 
becomes a party to the Court.
    I know from the prepared testimony of today's witnesses 
that they intend to devote themselves to criticizing 
legislation that is before the Committee, the American 
Servicemembers' Protection Act, and we want your criticism of 
legislation and your own view.
    Clearly the Administration is not supportive of the 
legislation, but we should all reflect for a moment on why the 
legislation was introduced, as I understand it.
    To my mind, the legislation is about accountability. It was 
introduced because there has been a failure in the conduct of 
our nation's diplomacy with respect to the International 
Criminal Court.
    The Administration set in motion a process that led to the 
Rome Treaty. It seems to me that it lost control of the process 
while dealing with European Union members in particular those 
with a very different attitude about international 
organizations than does the United States and its citizens.
    A treaty emerged that is prejudicial to our national 
interest, so prejudicial, in fact, that the Administration 
decided it could not sign the treaty; I commend them for that 
judgment.
    Since that time, the Administration has devoted itself to 
trying to deal with the problem that presents itself to us. 
Apparently, the Administration is no longer trying to bring the 
United States into membership of the Court. Rather it now seems 
to be focused on trying to make it safe for the United States 
to remain outside the Court.
    Secretary Eagleburger and Secretary Bolton yesterday 
predicted that the Administration is unlikely to succeed in its 
efforts to win back what it lost in negotiations in Rome. I 
hope their judgment is incorrect, but that is commonly thought 
to be the case. They further argued that even if the 
Administration gets the technical fixes it is seeking, no 
American servicemember or Government official can have real 
confidence that he or she is safe from ICC prosecution, so I 
hope our witnesses today will not focus exclusively on the 
legislation and their criticism of it, although we want that. I 
hope you also tell us how our nation can avoid these kind of 
problems in the future, because I happen to think, in light of 
my contact with the legislators and government officials of the 
European Union nations, for example, that this is the beginning 
of a long-term problem for the United States.
    They are willing to give up elements of their sovereignty, 
it is quite clear, and we are not, and should not be.
    Before recognizing our panel, I want to first recognize the 
Ranking Democratic Member, Mr. Gejdenson, for opening comments 
he may have, and then I will introduce our witnesses. Mr. 
Gejdenson. Mr. Gejdenson. Thank you, Mr. Chairman.
    I am not sure whether the impetus for this legislation was 
the crowd that constantly worries about black helicopters and 
blue helmets taking over the country or simply a partisan 
attempt to gain advantage for the November elections, but it 
really just stuns me, and I was frankly disappointed by my old 
friend Secretary Eagleburger's responses yesterday.
    If you read the legislation, it says the United States 
should not help prosecute a known war criminal, it should not 
help defend an American who is being prosecuted. It creates an 
America attempting to isolate itself without even having a 
conversation about where the Court is going.
    I think there is no doubt here that we have grave 
reservations about the formation of the Court, its operation. 
But to argue that an Administration ought to be precluded from 
trying to improve an institution that is being created, a Court 
that is being created internationally is absolutely stunning to 
me.
    I think we all agree that at the end of the day it is 
highly unlikely that the Administration or the Congress would 
be supportive of this Court, but to argue that the 
Administration should not try to improve an institution that 
will be created, to make sure that America's interests aren't 
heard is particularly troubling to me--to argue that somehow it 
is not in America's best interest to have conversations with 
its closest allies in Europe and just simply walk away and not 
have any conversations is unacceptable to me.
    I want to ask the witnesses to address their concerns about 
the Court, because I think that is important, but also to argue 
and articulate why it is important for the Administration to 
continue discussions with our European friends and partners. I 
particularly want to welcome Under Secretary Slocombe and hope 
that he can make a statement at the end of Ambassador's 
Scheffer's remarks so we can get the Defense Department's views 
on record.
    All of us understand the difference between Liechtenstein 
and the United States as far as our exposure and our 
responsibilities worldwide, but I do not think we want the 
future of the world left to ad hoc courts and kidnappings as 
the only way to deal with international terrorists and 
criminals. If Brazil decided tomorrow that it had authority to 
go into every Latin American country and just grab whoever they 
wanted, the United States and I think most of the world would 
be offended. This Court may have the wrong definition, the 
wrong process, the wrong players, everything about it might be 
wrong, but we still ought to be in that discussion.
    Mr. Bereuter. I thank you, Mr. Gejdenson.
    It is my pleasure now to call on the gentleman from New 
Jersey, who is the Chairman of the Subcommittee responsible for 
oversight of Americans' involvement in international 
organizations, the gentleman from New Jersey, Mr. Smith.
    Mr. Smith. Thank you very much, Mr. Chairman.
    Mr. Chairman, the concept of a permanent International 
Criminal Court charged with prosecuting the gravest of crimes 
against humanity is not a new one. The idea was proposed and 
dismissed after the conclusion of the Nuremberg and Tokyo War 
Crime Tribunals that followed World War II.
    In recent years the idea has gained new momentum, driven 
largely by memories of the horrific crimes committed in Rwanda 
and the former Yugoslavia. I share the ideals of many ICC 
supporters. If we could construct an entity that would 
impartially prosecute only genocidal tyrants and war criminals 
I would support it without hesitation, but we do not inhabit an 
ideal world. The difficulty is in devising a system that will 
prosecute Pol Pot but not President Clinton, that will indict 
Ratko Mladic but not Norman Schwartzkopf.
    I am concerned that the Rome Statute of the International 
Criminal Court fails to accomplish that goal and that it is 
susceptible to serious abuse and manipulation.
    As it took form, the draft statute ballooned from an 
instrument focused on well-established war crimes into an 
encyclopedia of still-emerging human rights law. The resulting 
statute is a 30,000 word document that covers 77 pages. It 
contains sweeping language that leaves many elements of vaguely 
defined crimes up to the imagination of international lawyers.
    For example, according to article VI the crime of genocide 
includes, ``causing serious mental harm'' to members of a, 
``national, ethnic, racial or religious group.''
    It is true that similar language is contained in the 
Convention against Genocide, but the United States took a 
reservation to the jurisdiction of the World Court over the 
definition of genocide. This is not because we intend to commit 
genocide, but because the United States was unwilling to 
surrender its sovereignty to a body that might be manipulated 
by hostile parties using the vague language of the convention 
as an ideological hobbyhorse.
    Similarly, article V asserts ICC jurisdiction over the, 
``crime of aggression''--an offense that is not defined in 
international law or even in the Rome Statute itself, a point 
that I made repeatedly at the OSCE parliamentary assembly in 
Bucharest earlier this month. In the context of domestic law, 
such vagueness would be problematic. In the more combative 
context of international law it is dangerous.
    In addition to the problems posed by its vague definitions, 
the statute also claims a jurisdictional reach that is without 
precedent. Once 60 countries have ratified it, the statute 
claims ICC jurisdiction over any defendant who may have 
committed a crime in a signatory state regardless of whether 
the defendant's own state had ratified the treaty. By claiming 
to bind the subjects of non-signatory states, this self-
executing, potentially universal jurisdiction directly 
challenges traditional concepts of national sovereignty.
    Finally, the Rome Statute gives the ICC prosecutor a vast 
amount of personal power with a minimum amount of oversight. 
The statute drafters rejected a U.S. proposal that the 
prosecutor only be allowed to proceed on cases referred either 
by a sovereign state or by the U.N. Security Council. Instead, 
the ICC prosecutor may initiate investigations and prosecutions 
on his own authority without control or oversight by any 
national or international party.
    Under article 44, the prosecutor may also accept any offer 
of, ``gratis personnel offered by nongovernmental organizations 
to assist with the work of any of the organs of the Court.''
    I have long been a supporter of the important work 
undertaken by International NGO's, particularly relating to the 
protection of human rights and the provision of humanitarian 
relief, but it is also true that there exist hundreds of highly 
ideological NGO's who look to international bodies to promote 
agendas that go far beyond the domestic political consensus in 
their home countries. The combination of the independent 
prosecutor's extreme discretion with staff provided by well-
funded extremist NGO's could lead to serious problems and 
partisanship by the ICC. These are but a few of the problems 
that I have with the present form of the Rome Statute.
    I readily acknowledge that many, probably most, ICC 
supporters do not intend for the Court to be used as a club for 
U.S.-bashing or as an engine or radical social engineering, but 
once the ICC is established it will take on a life of its own. 
Its activities will be restricted by the language of the Rome 
Statute itself rather than by the best intentions of its most 
responsible supporters, and I just would say finally, Mr. 
Chairman, as you know, I take a back seat to no one in 
promoting--in the past and present--both the Rwanda War Crimes 
Tribunal and the International War Crimes Tribunal for the 
Balkans.
    When we were holding early hearings in our subcommittee as 
well as on the Helsinki Commission I offered language and 
amendments to boost the U.S. donation to those important 
tribunals and so I take a back seat to no one, but this I think 
has some very real problems that need to be addressed. I yield 
back.
    Mr. Bereuter. Thank you very much, Mr. Smith.
    Now our first witness today is Ambassador David Scheffer, 
the Ambassador-at-Large for War Crimes Issues at the Department 
of State.
    He has held that office since 1997. He previously served as 
Senior Advisor and Counsel to our then-Ambassador to the United 
Nations, Madeline Albright.
    Before working in the Clinton Administration, Ambassador 
Scheffer held a variety of positions including Adjunct 
Professor of Law at Georgetown University and Columbia 
University, Senior Associate at the Carnegie Endowment for 
International Peace, and a stint as a consultant to an 
organization called the House Committee on Foreign Affairs.
    Ambassador Scheffer is joined by the Honorable Walter 
Slocombe, the Under Secretary of Defense for Policy. Secretary 
Slocombe has held this position since 1994. Before joining the 
Administration, he was partner in the D.C. law firm of Kaplan & 
Drysdale and also held positions in the Department of Defense 
during the Carter Administration and is a frequent witness 
before this Committee and our subcommittees.
    Gentlemen, we welcome you. Ambassador Scheffer, we have 
your prepared statement, so we welcome a summary of your 
testimony. Your entire statement will be made a part of the 
record and you may proceed as you wish.

STATEMENT OF THE HONORABLE DAVID SCHEFFER, AMBASSADOR-AT-LARGE 
        FOR WAR CRIMES ISSUES, U.S. DEPARTMENT OF STATE

    Ambassador Scheffer. Thank you very much, Mr. Chairman, and 
thank you also, Congressman Smith, and to the ranking Member 
Congressman Gejdenson.
    I will in fact shorten my statement considerably and look 
forward to the full statement being filed in the record.
    I appreciate the opportunity to testify this afternoon on 
H.R. 4654, the American Servicemembers' Protection Act of 2000. 
We all share the same minimum objective, namely to ensure that 
members of the U.S. Armed Forces and U.S. Government officials 
are not prosecuted before the International Criminal Court when 
it is established.
    However, as the Chief Negotiator for the United States on 
the ICC Treaty of July 17, 1998, and its supplemental 
agreements still being negotiated at the ICC Prep. Comm., I 
believe that this legislation will cripple our ability to 
achieve our common objective. This legislation will not change 
a single word of the ICC Treaty of any of its supplemental 
documents. Indeed, H.R. 4654 will worsen our negotiating 
position at the very moment when we stand the best chance of 
securing agreement with other governments to protect our 
soldiers and Government officials and to continue our support 
for international justice.
    The Administration opposes this legislation. H.R. 4654 
infringes on the President's Constitutional authority as 
Commander-in-Chief and to conduct foreign relations. It is 
counter-productive not only because of its direct impact on 
critical negotiations relating to the ICC, but also because 
H.R. 4654 would seriously damage U.S. national policy 
objectives. It would hold national security and foreign policy 
interests hostage to the fate of our relationship with 
Governments that support the ICC and to the willingness of 
other members of the Security Council to immunize our Armed 
Forces personnel from ICC jurisdiction.
    As the Department has explained in letters to Chairman 
Gilman and Representative Gejdenson dated June 30, 2000, 
current law prohibits the use of Federal funds to support the 
International Criminal Court, but this bill is more sweeping 
and harmful to particular Defense and foreign affairs programs. 
It would prohibit military aid to any country that has ratified 
the ICC treaty with exceptions only for NATO and major non-NATO 
allies.
    Moreover, by requiring that the U.N. Security Council grant 
immunity to U.S. personnel to participate in U.N.-authorized 
military activity, the legislation could effectively prevent 
U.S. military engagement on issues of critical national 
security concern.
    The bill would have these detrimental consequences without 
providing the Administration with any new authority or any 
increased ability to protect U.S. servicemembers from 
prosecution. Rather, it would tie the hands of the President as 
Commander-in-Chief, and risk harming important U.S. interests 
by its inflexibility.
    The Administration is actively pursuing the international 
protection objectives that are critical to the executive branch 
as well as to many Members of Congress. In particular, at the 
ICC Prep. Comm. meetings in New York where supplementary treaty 
documents are being considered, we are proposing a measure that 
in general terms would ensure that servicemembers and civilian 
officials of countries such as the United States that have not 
ratified the Treaty are not brought before the Court without 
the consent of their governments.
    We have made clear that without a favorable result the 
United States would be compelled to reconsider U.S. military 
participation in certain contingencies.
    The latest round of ICC meetings ended on June 30. We made 
important progress at those meetings, but we have a very tough 
struggle ahead as we advance toward the next session in late 
November. We are deeply concerned that in addition to imposing 
unnecessary and dangerous restrictions on national security 
decisionmaking the legislation prejudges the outcome of ongoing 
negotiations on the protection objectives we are seeking to 
achieve.
    For this reason it would undermine the efforts of the U.S. 
negotiators and diminish the likelihood of obtaining those 
additional protections for U.S. servicemembers.
    Before I comment on particular provisions of the bill I 
want to emphasize that the ICC Treaty is designed to bring to 
justice those most responsible for the most serious crimes of 
concern to the international community, namely genocide, crimes 
against humanity, and war crimes. Since 1993, we have been 
deeply engaged in every phase of the ICC treaty. We have 
supported the creation of an effective and appropriate 
International Criminal Court because there is a clear need for 
one in the wake of continued atrocities.
    Nonetheless, a fundamental flaw remains in the ICC Treaty 
regarding the Court's purported ability to prosecute under 
certain circumstances the nationals of nonparty states, even 
those acting officially for responsible nations like the United 
States. Therefore, the possibility of our own exposure under 
the ICC Treaty remains, and that is why we are seeking further 
protection in the ICC talks.
    In my prepared remarks there is considerable attention paid 
to the Department of Justice's advice regarding the 
Constitutional infirmities of this legislation. I will not 
repeat those points in my oral remarks but I strongly recommend 
them to you for your attention.
    I also believe that the paper submitted by Monroe Lee on 
behalf of the American Bar Association, which also discusses 
the Constitutional issues relating to this legislation, is 
extremely good reading, and I commend it to the Committee.
    Section IV of H.R. 4654 would prohibit specific forms of 
cooperation with the Court until the United States ratifies the 
ICC Treaty. The President already has that authority, but we 
anticipate there will be instances in which it will be the 
national interest to respond to requests for cooperation even 
if the United States is not a party to the ICC Treaty. We may 
decide that an international investigation and prosecution of a 
Pol Pot or Saddam Hussein and Idi Amin, a Foday Sankoh or some 
other rogue leader who has committed or is committing heinous 
crimes that no civilized government or people could possibly 
condone or acquiesce in would be in the national interest of 
the United States to support.
    In the ICC negotiations the U.S. Government has pressed 
other governments hard to accommodate our need to protect U.S. 
personnel from being surrendered to the ICC to stand trial 
while the United States is not a party to the Treaty. I must be 
able to offer in exchange for the protection that we are 
seeking the ultimate cooperation of the United States with the 
ICC when it serves our national interests while our country is 
a nonparty to the ICC Treaty.
    Section V can severely impede national interests and 
needlessly hold them hostage to the ICC Treaty. Under the 
Constitution the President already has the authority to do all 
that is required in Section V of the bill but Section V ignores 
the President's responsibility to national security 
considerations in deciding when and how to deploy U.S. military 
personnel under a wide and often unpredictable range of 
contingencies. The bill ties the President's hands in a way 
that can severely undermine this nation's ability and will to 
protect our national interests.
    Section VI is unnecessary. As we have already ensured in 
articles 72 and 73 of the ICC Treaty that we will have complete 
control as a nonparty or as a party to the ICC Treaty over the 
transfer of classified national security information to the 
ICC.
    Under Section VII of H.R. 4654 U.S. military assistance 
globally would be held hostage to the ICC Treaty regardless of 
U.S. national interests, regardless of whether our 
servicemembers are protected through some means other than an 
article 98 agreement and regardless of what circumstances will 
arise in the future. This provision can only undermine our 
national interests. The President already has this authority if 
he chooses to use it to advance national security objectives. 
The legislation requires the use of that authority in a way 
that is most likely to undermine relevant national policies.
    Section VIII would authorize the President to use all means 
necessary and appropriate to free U.S. personnel being detained 
or imprisoned by or on behalf of the ICC. We would note that 
the ICC will be located in The Hague, the Netherlands, so in a 
curious way Section VIII contemplates an armed attack on the 
Netherlands, a close NATO ally of the United States. It is, to 
put it bluntly, an alarmist provision that only complicates our 
ability to negotiate our common objective of protection from 
prosecution.
    Under the Constitution the President already has the 
authority to protect U.S. personnel wherever they are located 
in the world.
    Section IX of the H.R. 4654 requires a report evaluating 
the degree to which each existing status of forces agreement or 
other similar international agreement protects U.S. personnel 
from extradition to the ICC under article 98 of the ICC Treaty. 
Although we could provide such an assessment, the major issue 
lies in reopening SOFAS to negotiation in order to seek full 
protection from extradition through a SOFA provision.
    Section IX requires the President to transmit to Congress a 
plan for amending existing SOFAs or negotiating new 
international agreements in order to achieve the maximum 
protection available under article 98. Reopening SOFAs could 
encourage host countries to insist on renegotiating other 
existing provisions.
    Section X requires a report with respect to military 
alliances to which the United States is a party. This provision 
needlessly subjects our alliance command arrangements to 
factors pertaining to the ICC Treaty and thus suggests that 
once again our national security interests will be held hostage 
to the ICC Treaty.
    In conclusion, many of the provisions of H.R. 4654 achieve 
exactly the opposite of the result intended and would seriously 
harm our own national security and foreign policy interests. 
The legislation would cripple our negotiating leverage to 
achieve the common objective of protection of American 
servicemembers from surrender to the ICC. Section V could make 
it impossible for the United States to engage in critical 
multinational operations. Section VII could weaken essential 
military alliances.
    The bill raises fundamental Constitutional issues and would 
seriously impair any future Administration's ability to pursue 
national security objectives.
    As a negotiator who has faithfully worked and will continue 
to work to protect U.S. national interests and U.S. 
servicemembers in the ICC Treaty regime, I respectfully ask you 
to withdraw this legislation so that I have a fighting chance 
to achieve additional protections for U.S. servicemembers.
    Thank you, Mr. Chairman and Congressman Smith.
    [The prepared statement of Ambassador Scheffer appears in 
the appendix.]
    Mr. Bereuter. Thank you, Ambassador Scheffer. Do you have 
any kind of statement or remarks that you would like to offer 
at this point? If not, the Under Secretary is recognized.

STATEMENT OF THE HONORABLE WALTER SLOCOMBE, UNDER SECRETARY OF 
         DEFENSE FOR POLICY, U.S. DEPARTMENT OF DEFENSE

    Mr. Slocombe. Thank you, Mr. Chairman.
    First of all, I associate myself with and the Department of 
Defense with the detailed points made by Ambassador Scheffer in 
his statement.
    Let me say a few words, first of all, about why the 
Department of Defense and the Administration are opposed to the 
United States being a party to the Rome Statute, and, indeed, 
opposed to particular provisions of the Rome Statute, the 
issues which Congressman Smith addressed in his statement, in 
particular.
    And then I will explain why, in spite of that position, we 
are concerned about this bill and oppose it in its present 
form.
    The Department of Defense is committed to the vigorous 
prosecution of violations of human rights law and of the Law of 
War. We have, indeed, prosecuted American Servicemen where 
there have been credible allegations of such violations on 
their part.
    We have supported the international criminal tribunals for 
Rwanda and for Yugoslavia, and we regard the establishment of a 
body of international law relating to crimes against humanity, 
genocide and so on, as valuable and important. Indeed, we place 
a high priority in conducting our own military operations on 
compliance with the relevant provisions of the Law of War. I 
commend to the Committee's attention the very important opinion 
issued by the Prosecutor for the ICTY, rejecting all of the 
allegations against NATO activity in Kosovo.
    So it is not a question of fidelity to international law or 
recognizing its importance. Indeed, the United States 
supported--would have supported--the establishment of an 
appropriate international criminal court. However, we have a 
fundamental problem with the treaty as it emerged from the Rome 
meetings, because of its inadequate jurisdictional safeguards, 
particularly as applied to nationals of states that have not 
ratified the treaty.
    As it currently stands, the Rome Treaty could expose 
servicemembers and government officials of non-party states to 
criminal liability. This possibility is particularly serious in 
the case of the United States, because we believe there is a 
real potential for groundless, politically motivated charges to 
be brought by other states that object to the international 
policies of any non-party states, but specifically the United 
States.
    That exposure would inhibit responsible international 
military efforts in support of humanitarian and peacekeeping 
objectives.
    However, the fact is that this treaty is likely to come 
into effect when 60 states ratify it. For that reason we attach 
very high importance to making an attempt, which is now in 
progress, to ensure that nationals of non-party states acting 
pursuant to official instructions, acting on behalf of their 
countries, cannot be prosecuted.
    If those efforts fail, we will have to take a hard look at 
our overall approach to the Court. A negative result could have 
a major impact on our decisions about whether to participate in 
certain types of military contingencies.
    We would be facing the significant risk that the United 
States would be unable to support the ICC or recognize its 
legitimacy, particularly over personnel engaged in military 
operations.
    So just as there is, I think, no question that the 
Department of Defense recognizes international law and the 
requirements that that imposes on our operations, there is no 
question that the Administration, very largely for the reasons 
that Congressman Smith has identified, regards the treaty in 
its present form as unsatisfactory.
    All that said, the Department of Defense joins in the 
opposition to this bill for two basic reasons.
    First, and perhaps of the greatest immediate importance, 
Ambassador Scheffer, leading an interagency delegation, is now 
engaged in very difficult negotiations to secure protection for 
U.S. military personnel in the situation which is going to 
exist anyway, that is, that the treaty comes into effect with 
the United States as a non-party.
    We believe that the legislation will interfere with those 
efforts to fix the problem.
    Second, there are serious objections to details in the 
legislation which have been broadly outlined by Ambassador 
Scheffer, quite apart from its immediate impact on the on-going 
negotiations.
    The bill does not give the President any power he doesn't 
already have.
    It seriously limits U.S. flexibility, for example, by 
cutting off aid to a large number of countries in the world 
with whom we have, for very good reasons, with the support of 
the Congress, substantial military-to-military links.
    It would complicate the already sufficiently complicated 
problem of keeping our Status of Forces Agreements [SOFAs] in a 
form which will protect American military personnel overseas 
from a whole set of other problems.
    It would block U.S. cooperation, even in cases of 
prosecutions which we strongly supported, and in a sense, it is 
legislative overkill.
    This issue--of the ICC--is an important one, but it is not 
the only concern we have, and by imposing a set of rigid rules, 
we'd make it far more difficult, I believe, both to carry out 
our objectives with respect to the Rome Statute, but also with 
respect to carrying out our national security policies in the 
future.
    I thank the Committee for your attention, and I look 
forward to answering questions.
    Mr. Bereuter. Thank you very much, Secretary Slocombe. The 
House has a series of two votes that occur in 15 minutes, which 
is only 5 minutes away, and then a 5-minute vote, so we will 
recess the Committee until approximately 10:50 a.m.
    Thank you very much.
    [Recess.]
    Mr. Bereuter [presiding]. The Committee will be in order. 
We'll now proceed under the 5-minute rules for the questioning 
of our witnesses.
    Ambassador Scheffer, could you clarify for me and for the 
Committee, the policy of the Administration regarding the Rome 
Treaty and the creation of the ICC?
    Are you trying, in effect, to fix the Rome Statute so that 
eventually the United States can sign it, can ratify the treaty 
to create the ICC? Or, are you trying to fix it so that our 
nation can remain a permanent non-party to the treaty without 
fear that our servicemembers and other government officials 
will become targets for prosecution by the ICC?
    Ambassador Scheffer. Thank you, Mr. Chairman. It's actually 
neither, but it's mostly the latter that you have just 
described.
    In other words, we are not in a posture at this point of 
trying to, shall we say, fix the treaty in contemplation of 
signing and ratifying it; rather, we are seeking to fix what I 
very accurately describe as the treaty regime, because it 
simply is not plausible at this stage to consider actually 
amending the text of the treaty.
    The first opportunity to amend the text of the treaty only 
arises 7 years after the treaty enters into force with 60 
ratifications.
    So in our own interest, that's not exactly where we should 
be directing our energies at this point; but, rather, we are 
looking at the supplemental documents that are associated with 
this treaty to determine how we might best protect our most 
important interests in those documents.
    And, of course, our most important fundamental interest is 
the protection of U.S. personnel from surrender to this Court 
while we are a non-party. That is our objective.
    It is not tied to any plan for signature, and certainly 
none for ratification.
    The only reason I said it's not quite the latter point that 
you described is that you said for our permanent non-party 
status under the treaty.
    I don't want to prejudge that for future Administrations 
whatsoever. All we want to do at this time is to get this 
squared away so that the United States can be comfortable with 
this treaty and be able to facilitate its objectives when it is 
in our national interest to do so.
    Mr. Bereuter. So, Ambassador, you're saying that the word 
that I used, ``permanent,'' makes it not an accurate 
description. So, in fact, you're trying to assure that as a 
non-party to the treaty, our personnel, military and otherwise 
will not be subject to prosecution in the ICC? Is that correct?
    Ambassador Scheffer. Precisely.
    Mr. Bereuter. And if, in fact, there are no opportunities 
to amend the treaty until approximately 7 years, I think you 
said----
    Ambassador Scheffer. Yes.
    Mr. Bereuter. And at that time, it would only be members of 
the ICC, those that have signed the treaty, ratified it, that 
would have an opportunity to amend it?
    Ambassador Scheffer. That's correct.
    Mr. Bereuter. In fact, as a non-party, we would not be part 
of those discussions for amendment?
    Ambassador Scheffer. Yes.
    Mr. Bereuter. Ambassador Scheffer, could you explain to me, 
how people came together to draft the Rome Statute? I want to 
understand the legitimacy of the people that gathered to make 
decisions like that.
    Ambassador Scheffer. It began in 1989 with a proposal by 
Trinidad and Tobago to create a permanent court for drug 
trafficking prosecutions. But it grew from that in the 
International Law Commission of the United Nations to focus 
instead on a permanent court that would prosecute genocide, war 
crimes, and crimes against humanity.
    And in the early 1990's, up through 1994, the International 
Law Commission prepared a draft statute for such a permanent 
court. That was then sent to the General Assembly of the United 
Nations, and the General Assembly decided in late 1994 to 
create a committee of the whole body of the United Nations to 
examine the statute prepared by the International Law 
Commission.
    Those meetings began in early 1995, and they continued 
through to the Rome Conference of July 1998.
    Mr. Bereuter. And who were participants in that?
    Ambassador Scheffer. The participants were representatives 
of, I would say, a majority of the governments which are member 
states of the United Nations. Each session saw a few more 
governments, you know, participate from the earlier sessions.
    But it has always been one of the frustrations that we had 
as a U.S. delegation, that the membership of so many 
delegations of governments consisted primarily of lawyers, 
sometime academic lawyers, even though we're both lawyers.
    But the point is that they were not necessarily there with 
the full corpus of the political context of their own -- of the 
entire process in mind. It became very much at times a 
technician's exercise. And we tried to keep bringing people 
back to the reality that this Court must balance the 
requirements of international peace and security -- and many of 
us have those responsibilities--with our common interest in 
preserving international justice.
    And in the process, we won a lot of our debates. We won a 
lot of our points in this treaty, but on some of them, we did 
not prevail.
    Mr. Bereuter. Mr. Smith, I'm going to extend myself another 
minute or two, and then we'll be generous with you as well.
    Ambassador, the term ``statute'' confuses me, because as I 
understand what happened there, this is not consistent with the 
way we use the term in the Congress or in making legislation or 
crafting within the United States.
    Why the term ``statute'' when we are, in fact, proposing a 
treaty?
    Ambassador Scheffer. Let me explain the difference, if I 
may, Mr. Chairman. When one speaks of creating a court on an 
international level, it has to have some governing document for 
the functioning of that court. And as with the Yugoslav 
Tribunal and the Rwanda Tribunal, the Security Council adopted 
statutes or a statute for each tribunal, which is its 
constitution, basically, the court's own constitution, the 
basic principles by which the court must function.
    It is simply a term of art that has arisen in the 
international sphere, and during the talks for the ICC, it is 
that basic constitutional document of the court itself which is 
described as the statute.
    The treaty itself, when ratified, embodies that statute, 
and I guess the best I can say is that it's simply, in U.N. 
practice, once you have ratified the treaty, per se, you are 
also, of course, adopting as part of that ratification package, 
the statute of the court itself.
    Mr. Bereuter. Thank you very much. I have further 
questions, but we'll turn now to Mr. Smith under the 5-minute 
rule, and I will extend it to seven.
    Mr. Smith. Thank you very much. Ambassador Scheffer, let me 
just ask you a question with regard to the delegations.
    It's my understanding that many of the delegations really 
were represented by NGO's. I wonder if you could provide us 
with a roster of who the participants were? You know, who was 
in the room, who was actually leading the effort for the 
language that ultimately resulted? I think it would be very, 
very enlightening to get that.
    Ambassador Scheffer. I can do that, Mr. Congressman. In 
fact, it's very easy, because at each session, the United 
Nations compiled the official list, so we can provide you with 
that.
    Mr. Smith. I ask that that be part of the record. I think 
that would be important.
    Mr. Bereuter. Without objection.
    [The information requested was not provided.]
    Mr. Smith. Let me ask you, Mr. Ambassador, your view as to 
why Israel was unable to sign the Rome Statute? It struck many 
of us as strange that a nation whose people have had such a 
direct experience with genocide would feel compelled to stay 
outside an institution that is ostensibly designed to punish 
and prevent genocide and other war crimes?
    Ambassador Scheffer. Sir, some of the reasons--and I don't 
want to speak for the government of Israel, but since I worked 
closely with their delegation, I think they will have 
confidence in my saying this, that certainly some of their 
objections were related to the very same reasons that we had, 
particularly the exposure of non-party nationals, because they 
may find themselves in that position as well, so they have that 
concern.
    But they also had a very dominant concern that was not 
necessarily relevant to the United States and the territory of 
the United States, but since we have a very close relationship 
with Israel, of course it's relevant to us. And that is the 
particular war crimes set forth in article VIII-2(b)(8), which 
refers to the transfer of civilian population into an occupied 
territory.
    The manner in which that crime was agreed upon in Rome was 
contrary to what we wanted. We felt it was an overreach of 
existing international law. It consumed an enormous amount of 
debate and time in the negotiations, and Israel clearly could 
not accept the way it came out.
    We always had a standing principle in our negotiations on 
the crimes, which is the crime must reflect existing customary 
international law, and there must be nothing that contradicts 
that.
    So we knew that we had a very tough road ahead of us after 
Rome in the document called The Elements of Crimes. This is 
where each crime is further fleshed out in terms of its 
definitions and how a persecutor would prosecute the crime or 
defense counsel would defend against it.
    Over almost a year of intensive discussion, we finally were 
able to draft the Elements of Crimes for that particular crime 
in a way that was satisfactory to the Government of Israel, and 
also achieved consensus with other governments. Everything we 
do has to achieve consensus in these deliberations.
    At the end of that, we were able in the Elements of Crimes 
to accommodate the concerns of Israel, to have a footnote 
inserted in the Elements of Crimes that would make it clear 
that international humanitarian law has to be the guiding 
principle for the application of that particular crime, meaning 
existing international humanitarian law.
    Israel was prepared to say we'll interpret it the way we 
believe it should be interpreted, and we'll fight it on that 
ground. After we achieved that fix in the Elements of Crimes, 
Israel expressed its appreciation to us, and Israel joined in 
the consensus on the Elements of Crimes, including that 
particular crime.
    Mr. Smith. Just going back, if you could provide the 
Committee with a list of each area where we had a disagreement, 
I think it would be very helpful.
    But did we, pursuant to consensus, finally accede to the 
Elements of Crimes and all the other provisions that are in 
that?
    Ambassador Scheffer. Yes, we joined consensus on the 
Elements of Crimes and on the Rules of Procedure and Evidence. 
That was on June 30, last month.
    Mr. Smith. So the only remaining area of difference is 
what?
    Ambassador Scheffer. Well, we still have a difficulty with 
the underlying statute of the Court, which is this issue of the 
possibility that nationals of non-party states----
    Mr. Smith. If I could interrupt, I thought that was a 
concern. But have we agreed to everything in the body of the 
Rome Statute by way of consensus--or haven't we?
    Ambassador Scheffer. No. We did not join consensus in Rome 
on the statute itself.
    Mr. Smith. We were unable to block it, so consensus really 
didn't prevail?
    Ambassador Scheffer. No. Just to clarify, everything we've 
been doing in the Preparatory Commission after Rome has been by 
consensus. At Rome, we called for a vote to state our objection 
to the actual stature.
    Mr. Smith. Secretary Slocombe, I noted that the Ambassador 
criticized Section VIII of the American Servicemembers 
Protection Act, which authorizes the President to use whatever 
means are necessary to free any American servicemembers who are 
held captive by or on behalf of the Court.
    The testimony, as he presented it, said that this provision 
implicitly threatens the Netherlands where the ICC will be 
headquartered, with an armed attack by the United States. The 
testimony then goes on to assert that the President already has 
all the authority he needs to protect American servicemembers 
anywhere in the world.
    The juxtaposition of these two assertions leads me to ask 
what the policy of the Administration is if an American 
servicemember were imprisoned by the ICC in the Netherlands or 
elsewhere? If all other diplomatic efforts to bring about the 
release of that servicemember failed, would the Administration 
be prepared to use force to free him, or would it let him 
remain a prisoner of an international tribunal whose legitimacy 
we have rejected?
    Mr. Slocombe. Certainly making sure that American service 
personnel who are being improperly held are freed, would be a 
very high priority. What the mechanics of doing it are, and 
what would be workable and in our interest in any particular 
circumstance would have to be decided at the time.
    Mr. Smith. What do you believe, hypothetically, would be 
ruled in, and would be ruled out? One of the reasons why this 
legislation is proposed is to give clear notice as to U.S. 
intent.
    Mr. Slocombe. I think there is no question that the 
President would have the authority to do what he thought was 
appropriate, so the legislation doesn't add to the authority.
    And, to be fair, the legislation doesn't say to go bomb The 
Hague at the first time you have a dispute about it. I think 
it's an example of the legislation, which is basically, I 
agree, well-intentioned and, indeed, supports something the 
Administration agrees with.
    It just goes overboard, and, in fact, doesn't add any power 
that don't already exist.
    Mr. Bereuter. The time of the gentleman has expired. I was 
going to recognize Mr. Berman, but I wonder if the gentleman 
would have an opportunity to take the chair so that I could go 
participate on the debate on the Vietnam waiver. Thank you.
    The Chair recognizes the gentleman from California for 7 
minutes.
    Mr. Berman. Gentlemen, it is good to have you here and I 
apologize for missing your testimony.
    There are a couple of things I want to pursue. The United 
States has decided it does not want to sign and submit to the 
Administration, to sign and submit for ratification the loan 
statute. Is that----
    Ambassador Scheffer. There is no plan to do either.
    Mr. Berman. Right. At the same time the legislation 
prohibits you from what kinds of activities dealing with this 
International Criminal Court and the statute?
    Ambassador Scheffer. It would shut down, if this 
legislation were adopted, it would shut down any ability of any 
governmental unit of the United States at the Federal, state or 
local level, to respond to any request for cooperation or even 
to allow any investigator of the Court to enter U.S. territory 
for any purpose that is before the Court.
    Now, the difficulty with that proposition is that it could 
well be the case, 10, 20, 25, 30 years from now, that the Court 
which will come into existence would have before it a rather 
odious individual from somewhere else in the world that truly 
should stand before a court of law and be prosecuted for 
genocide, crimes against humanity, or war crimes. This 
legislation prevents us from even voluntarily cooperating with 
the Court to ensure the prosecution of that individual.
    Unfortunately, it sort of has the flip side potential of 
being a War Criminal Protection Act, because, in a sense, it 
would deprive the Court of evidence or other information that 
we might be very willing to provide in order to actually 
prosecute the individual. It also would set up the United 
States in a rather curious way as a potential safe haven for 
these individuals, who know that if they arrived in the United 
States, there would be no cooperation with the ICC.
    Mr. Berman. Although just on that point, do our courts have 
jurisdiction and do we have the ability to prosecute under U.S. 
laws people who engage in international criminal conduct?
    Ambassador Scheffer. Congressman, in some cases we do and 
in others we don't. You know, we are quite familiar with what 
the limitations of our own Federal law are at this time, and I 
think one of the challenges that we have before us in the 
coming years is to take a good hard look at the Federal law and 
at the Code of Military Justice and determine, are we fully 
capable of prosecuting individuals on our soil with respect to 
these crimes?
    I think in some cases you will find we are. In others, 
there are statutes of limitations that make it very difficult 
if suddenly the individual arrives 5 years after the commission 
of the crime. So we do have a lot of work ahead of us to ensure 
that we are capable of prosecuting these individuals in the 
United States.
    Mr. Berman. Yesterday I caught just a brief part of the 
hearing Secretary Eagleburger and former Assistant Secretary 
Bolton testified at. And I asked them--I raised the issue, 
forget 25 or 30 years from now, let's assume 60 countries sign 
and ratify this--how many have already signed it?
    Ambassador Scheffer. Ninety-seven have signed it, 15 have 
ratified it.
    Mr. Berman. And 60 is the----
    Ambassador Scheffer. Is the benchmark.
    Mr. Berman. And you stated it as it if were as much of a 
certainty as one can state in this world that 60 will ratify 
it.
    Ambassador Scheffer. I think it is the only responsible 
presumption for our government to have, that it will, in fact, 
reach 60 ratifications. To assume otherwise would be extremely 
dangerous, I think.
    Mr. Berman. Well, I raised one of the--it was they 
apprehended, under some set of circumstances, and decided to 
prosecute Milosevic for criminal conduct under the Rome 
Statute. And there was information held by the United States or 
one of its agencies, or witnesses that were here, and 
notwithstanding our desire not to participate in the Court, we 
thought that this served general world interests and U.S. 
interests to help provide evidence to the prosecutor of this 
case.
    And they, Mr. Bolton, in particular, acknowledged that this 
would prohibit that kind of cooperation, but he thought that 
was good because this Administration in particular would 
undoubtedly provide classified information to that Court which 
would reveal sources and methods to the detriment of people who 
had befriended us and provided certain information to us, and 
that we had to have this statute to protect our country from 
our Administration.
    I am just curious about your reaction to that line.
    Ambassador Scheffer. Well, we share neither Mr. Bolton's 
vision of this Administration, nor his vision of the future. As 
for this Administration, I think we have established a very 
firm record with respect to our relationship with the Yugoslav 
War Crimes Tribunal and the Rwanda War Crimes Tribunal on the 
provision of information to those tribunals. We have a very 
rigorous procedure, it is one that is dominated by interagency 
checks and balances and I can assure you, being in the trenches 
of it, that I can state with great confidence that we are doing 
our job extremely well with those two tribunals on this issue.
    As for the future, it is somewhat astonishing to conclude 
at this juncture that under any circumstances whatsoever in the 
future, we might not view it in our national interest to 
facilitate such a prosecution. I will remind the Committee that 
articles 72 and 73 of the ICC Treaty, which we negotiated very 
intensely in Rome, and we prevailed on, give us complete 
authority over what information is provided of a national 
security character to the ICC. We have complete discretion.
    Mr. Berman. May I ask one more question, Mr. Chairman? I do 
see my time is up.
    I think in response to the gentleman from New Jersey's 
question, you spoke about the situation with Israel. I take it 
you construe this bill to prohibit you from participating in 
those kinds of negotiations in the future?
    Ambassador Scheffer. I'm sorry, Congressman.
    Mr. Berman. With respect to the definition of one of the 
crimes dealing with transfer of populations Mr. Smith asked you 
asked, you told the story of sort of the U.S. role in changing 
the term of reference and getting a footnote, and, as a result 
of that, Israel withdrew its concerns with that language. My 
question is, do you view this bill as prohibiting you in the 
future from doing that kind of activity that you did there?
    Ambassador Scheffer. Thank you very much. I am sorry I 
didn't catch on. First of all, those negotiations on that 
particular crime have now come to a close, and we 
satisfactorily resolved the issue with that crime.
    Mr. Berman. Right.
    Ambassador Scheffer. But with respect to this bill, I must 
say that I think the very last government in the world that 
would want this bill adopted would be the State of Israel. Why? 
Because they look to us in these negotiations to pursue the 
objectives of this government, which are clearly of great 
interest and importance to the government of Israel as well. 
And therefore, if this bill were to be adopted, and there were 
no capability whatsoever to cooperate with the Court once it is 
established, we would have no influence with the Court on any 
matter that might pertain to the State of Israel. Why not have 
that influence?
    I cannot conceive of the State of Israel wanting to support 
this bill, it would be totally counter-intuitive to their 
interest to do so.
    Mr. Berman. Well, but the negotiations you described, as 
you pointed out, are already concluded. So maybe it was good 
that this was not the law then.
    Ambassador Scheffer. Exactly.
    Mr. Berman. But what about now? What more negotiations are 
there?
    Ambassador Scheffer. Exactly. I mean if this bill----
    Mr. Berman. Are there any more negotiations?
    Ambassador Scheffer. There are more negotiations in the 
Preparatory Commission ahead of us, very important ones.
    Mr. Berman. On what kinds of issues?
    Ambassador Scheffer. On the relationship between the Court 
and the United Nations, on the financing of the Court, on the 
rules for the assembly of states parties, once the Court is 
established, and how the states parties interact with each 
other, on the privileges and immunities for Court staff, and on 
the----
    Mr. Berman. What about the role of forces and peacekeeping 
operations, is that part of negotiation?
    Ambassador Scheffer. Well, nothing is ruled out for future 
discussion in the Preparatory Commission. And the Preparatory 
Commission will continue until the treaty actually enters into 
force. So there is a period of time here where it is going to 
continue to operate and there are going to continue to be 
meetings. In fact, there will be many issues of direct concern 
to the United States where we should be there discussing those 
issues, particularly the financing of the Court.
    The problem with this legislation is that if it were to be 
adopted at this time, it sends an extremely destructive message 
to other governments. Why should they listen to the United 
States in this negotiating realm? Shut it down is what they 
would do. It would be totally counterproductive.
    Mr. Berman. All right. So it isn't that the bill would 
prohibit you from participating in those discussions, it is 
that once you have indicated that in no fashion will you ever 
cooperate with anything they do, no matter it is, and by law 
you are precluded from cooperating, they are not going to give 
you the time of day?
    Ambassador Scheffer. That's right. As I read the bill, and 
maybe I am misreading it, but I don't think this bill, on its 
face, precludes us from participating in further Preparatory 
Commission meetings prior to establishment of the Court, but it 
establishes such a burden on our shoulders going into those 
negotiations, that in no circumstances do I foresee this bill 
enabling, or facilitating, or strengthening our ability as 
negotiators on a whole range of technical issues where we 
actually have very important interests at stake.
    Mr. Berman. Thank you, Mr. Chairman.
    Mr. Smith [presiding]. Thank you very much, Mr. Berman.
    Let me ask a few questions and then I will yield to my 
friend, Mr. Berman, if he has any further questions.
    You mentioned checks and balances that exist within the 
Yugoslavian War Crimes Tribunal. Do those same checks and 
balances also exist in the Rome Statute?
    Ambassador Scheffer. Congressman, there are many more 
checks and balances in the ICC statute, and I can go into some 
of those. But the power of the prosecutor is much more 
qualified within the ICC statute. The principle of 
complementarity, which is nowhere found in the Yugoslav or 
Rwanda Tribunal statutes is a central feature of this 
particular Court.
    And, furthermore, this Court, the ICC, depends upon the 
states parties to the Court to actually make very important 
decisions relating to the Court, whereas, the Yugoslav and 
Rwanda Tribunals look to no governments whatsoever for their 
decisionmaking.
    Mr. Smith. Let me ask you what kind of checks and balances 
there are. In terms of elected officials, our Founding Fathers, 
I think, were right in vesting only limited power in each of 
the three branches, being so distrustful, as they were, of any 
single entity being given so much power. Power corrupts, and 
absolute power corrupts absolutely.
    What happens if a prosecutor and/or judges were to run amok 
and to engage in an ideological crusade against certain 
individuals? I think we already have a shot across the bow when 
lawyers brought action against NATO for alleged war crimes, 
that our planes were flying too high, putting additional 
civilians at risk, the choice of targets, which they seem to 
disagree with. A war crime then potentially could be in the eye 
of the beholder. Because, again, I do think there is some true 
elasticity to these terms.
    Yes, Mrs. Del Ponte did not accept and did not proceed on 
those charges, but some other prosecutor may not be so 
favorably inclined. You might want to comment on that. Looking 
back, if the Rome Statute were in effect during World War II, 
for example, and we dropped the bomb on Hiroshima and Nagasaki, 
and we did the firebombing of Dresden and the other German 
cities with a huge number of civilian casualties, would that be 
construed as a war crime under the plain meaning of the Rome 
Statute?
    Ambassador Scheffer. Well, Congressman, it is far too 
speculative to try to get into that. Remember that during World 
War II, the question is, were those actions violations of 
codified or customary international law at that time?
    Mr. Smith. That is not the question I am asking.
    Ambassador Scheffer. No, I know.
    Mr. Smith. Fast-forward those military actions that this 
country undertook with our Alliance.
    Ambassador Scheffer. It is entirely speculative to say we 
would use exactly the same military tactics today as we did 
during World War II. I would not speculate in that direction, 
not at all. We are far more precise----
    Mr. Smith. But there is no doubt a reasonable man or woman 
could use the Rome Statute in cases analogous to matters of 
historical fact, where military decisions were made which 
resulted in huge casualties. Thankfully, at least, the 
consequence of Hiroshima and Nagasaki was the ending of the 
war. But there is an argument that has been made ever since as 
to the advisability of those actions.
    I think it is a fair question. Past is prologue. We may be 
faced with this in the future. We all know that NATO, in terms 
of its war doctrine, would rely on superiority, at least during 
the Soviet days, rather than quantity. Quality was what we 
would rely on. There is the potential that a United States 
President, or a French President, or a British Prime Minister 
may have to make a decision some day to use nuclear weapons. It 
is not beyond the realm of possibility and it is not highly 
speculative. Those things have to be thought through.
    Since we have the historical record, I think it needs to be 
plugged in to see whether or not this would have triggered a 
war crimes prosecution.
    Ambassador Scheffer. Well, we were careful in the drafting 
of the statute, as well as the elements of crimes, to establish 
very high barriers to actually launching investigations and 
prosecuting the crimes. Not isolated incidents, there has to be 
systematic widespread events. There have to be plans and 
policies to directly assault civilian populations. If military 
necessity dominates the reasoning behind the use of any 
particular military force, then that is in conformity with 
international law and it is in conformity with the statute.
    But if you are asking me, speculate as to whether or not it 
can conceivably be drawn that the United States takes a 
particular type of military action without describing what the 
intent was behind it, the plan or the policy behind it, I can't 
answer questions like that because you have to go through every 
step of the analysis before you can answer whether or not this 
statute would actually apply to that particular use of military 
force.
    Mr. Smith. Well, one of the more perverse outcomes would be 
that our military strategists would be faced with factoring in 
not just what is in the best interests of the United States and 
our allies, and how are we more likely to achieve a military 
end to a conflict. They would also have to factor in whether or 
not such an action would violate the Rome Statute.
    Let me also say, our nuclear doctrine rests on deterrence, 
and if the Russians were to attack us or to launch, we would 
destroy Russian cities. How would that fit into a Rome Statute 
world?
    Ambassador Scheffer. Congressman, this statute, as I said, 
specifically provides very high barriers that have to be met.
    Mr. Smith. But crimes of aggression aren't even defined 
yet.
    Ambassador Scheffer. And it is contrary to U.S. Federal law 
as well as the Uniform Code of Military Justice to violate the 
laws of war. So I would assume the plan or policy of the United 
States would not be to violate the laws of war. If it were the 
plan or policy to violate the laws of war, then we have a lot 
to answer for. But if it is not the policy to violate the laws 
of war, there should be symmetry between our actions and what 
has been set forth in the statute, which we agree with.
    We agree that the crimes set forth in the statute are 
crimes under customary international law which we must adhere 
to. We are not disagreeing with what is in the statute in terms 
of the list of crimes, we agree with them. They must be 
complied with.
    Mr. Smith. And again, signing a document that still has not 
defined crimes of aggression----
    Ambassador Scheffer. And by the way, I noticed that in your 
opening statement. I did want to get back to you on that. The 
whole process in the Preparatory Commission now is to try to 
determine, can there be a definition for aggression? The crime 
of aggression is not actionable under the statute unless there 
has been an agreement among the states parties to the statute 
at the 7-year review conference as to what is the definition of 
that crime. So you can't--there is no way to prosecute that 
crime until such a definition has been arrived at. And we have 
a very significant coalition of governments in total agreement 
with us as to how to proceed in those talks to define the crime 
of aggression.
    Interestingly enough, under the statute, if one is a state 
party to the statute, you have every right, if a new crime is 
added to the statute, to completely exclude yourself from the 
coverage of that crime.
    Mr. Smith. Mr. Slocombe, Secretary Slocombe, if you could 
respond to the hypothetical posed earlier about not just our 
deterrence strategy, which is based on the obliteration of 
cities, unless something has changed there that I don't know 
about, but also the bombing of Hiroshima, Nagasaki, and the 
firebombing that took place in Germany. If the Rome Statute 
were in effect, would that have precluded those actions?
    Mr. Slocombe. Mr. Smith, I think the way I would answer 
that would be to say that, in our view, if the Rome Statute 
were properly applied, American military personnel or the 
political officers, the President and, I guess in those cases, 
the Secretary of War, the Secretary of the Navy who ordered 
operations could not properly be prosecuted under them because 
they were legitimate. In the case of Hiroshima and Nagasaki, 
and, indeed, in general, with respect to the strategic bombing 
campaign against both Japan and Germany with conventional 
weapons, I would maintain that, judged by the context in which 
they occurred, they were not violations of the law of war under 
any circumstances.
    So that, as a lawyer, the way I would answer the question 
would be that the United States would have a good defense if 
such cases were, in your case, hypothetically tried.
    What I am concerned about, what the United States is 
concerned about, is that there could be a politically motivated 
prosecution based on what would, in our view, be a 
misinterpretation of the law of war, and, therefore, a 
misinterpretation of the Rome Statute. And once one is in a 
court, once you concede the principle of jurisdiction, there 
are no guarantees as to the result.
    Mr. Smith. So it would be possible that a Hiroshima, 
Nagasaki type action or the firebombing in Japan and in Germany 
could be prosecuted in the future if such a thing were----
    Mr. Slocombe. As we have said repeatedly, our concern in 
respect of this statute, in respect of the Court, is precisely 
the concern about politically motivated, in effect, bad faith 
prosecutions. Exactly.
    Mr. Smith. But what about a good faith prosecution, by 
someone who honestly believed that Hiroshima was a war crime? I 
mean it is possible that it could happen?
    Mr. Slocombe. Well, there is no question that on its face, 
the Court has jurisdiction over actual ``war crimes''. That is 
what the statute says, that is what is intended. Our concern, 
the United States military, through the United States military 
justice system, prosecutes and prosecutes vigorously well-
founded allegations that American military personnel have 
violated the law of war.
    We do not need the International Criminal Court to deal 
with that problem. So that is a non-problem. Our concern is not 
that there would be valid prosecutions of American military 
personnel. Our concern, rather, is, as I said, and as we had 
said repeatedly, our concern is with politically motivated 
prosecutions based not really on serious allegations of war 
crimes, but on disagreement with U.S. or other alliance 
policies, of which I think the rejected allegations with 
respect to Kosovo are a good example.
    Mr. Smith. Could I ask, and ask you to provide it for the 
record, that the Pentagon undertake an analysis as to whether 
or not Rome would apply to World War II actions like I 
mentioned before?
    Ambassador Scheffer, I think if these other issues were 
ironed out, you probably would like to see us sign this. But we 
have got to know what we are heading toward, and we need to 
look back before we look forward. Such an analysis, if it 
hasn't been done, really should be done.
    Mr. Slocombe. It has been done, that is the reason we 
opposed the treaty.
    Mr. Smith. What has been done, a look back at past 
conflicts?
    Mr. Slocombe. Well, I don't know that anyone did it in the 
mind of saying Dresden could have been prosecuted, I think they 
did it in the mind of saying you don't have to go back to World 
War II or to the Vietnam War to say that there is a very real 
danger that there could be politically motivated prosecutions 
through the International Criminal Court, and that is precisely 
the reason that not just the Department of Defense, but the 
Administration voted against the text and have refused to sign 
the treaty.
    Mr. Smith. And Ambassador Scheffer, you agree with that, 
there could be politically motivated prosecutions?
    Ambassador Scheffer. Precisely.
    Mr. Smith. I'm sorry?
    Ambassador Scheffer. Yes. Yes.
    Mr. Smith. Do you, Ambassador Scheffer, personally think 
that President Clinton made a mistake when he decided against 
signing the treaty in 1998?
    Your mike is not on.
    Ambassador Scheffer. I'm sorry, Congressman. My answer to 
your other question was yes.
    Mr. Smith. OK. Thank you.
    Ambassador Scheffer. No, there was no mistake whatsoever. 
In fact, the issue of signing was simply not the issue. In Rome 
it was, do we agree with other governments to release the text 
of the statute out of the Rome Conference in the form that 
existed at the end of the conference? That was the only issue 
there.
    It truly is a more responsible course to take not to 
consider even the issue of signing until one sees the totality 
of this treaty regime.
    Mr. Slocombe. If I could, Mr. Chairman, could I read a 
sentence from a letter which Secretary Cohen, with the 
concurrence of his colleagues in the senior levels of the 
Administration, sent in support of Ambassador Scheffer's 
effort, which responds exactly to your point? It reads, ``As it 
currently stands, the Rome Treaty could expose servicemembers 
and Government officials of nonparty states to criminal 
liability based on politically motivated charges brought by 
other states that object to the nonparty states' international 
policies.'' That is our position and that, in a sentence, is 
the reason for our concerns.
    Mr. Smith. Let me ask a final question or two. Ambassador 
Scheffer, how likely do you really think it is that you will 
succeed in your efforts to get the ICC to forego criminal 
jurisdiction over Americans and persons from other countries 
that are not a party to the Rome Statute? And what happens if 
you fail? Obviously there are a different set of diplomats and 
parliamentarians that I was meeting with, but at the Bucharest 
Conference we were all alone in our opposition. I was amazed in 
speaking one-on-one during the course of the week in Bucharest 
at the OSCE Parliamentary Assembly at how Pollyanna-ish some of 
the views were of members who did not have a clue what was 
contained in the statute but just said ``We want an ICC and 
that is it.'' The British were probably more emphatic than 
anyone, although they seem to have been informed and knew the 
contents of the statute. They were vigorously pushing for rapid 
ratification, which is what the operative language was that 
they were offering.
    The Germans offered it. We tried to weaken it with an 
amendment and it was not acceptable, regrettably. It seems as 
if, as Mr. Bereuter pointed out earlier, in terms of a 
willingness to just cede sovereignty, the Europeans have no 
problem with that, it seems. But obviously we do.
    What is the next step if they do not include us--or exclude 
us, I should say--from jurisdiction? What would be the next 
step?
    Ambassador Scheffer. Well, I think there will be some--let 
me just describe it as serious results if we cannot prevail 
with a provision or a document that is satisfactory to us in 
the Preparatory Commission talks.
    I think as Under Secretary Slocombe said earlier we are 
going to have to take a very serious reassessment of this. I 
think there is going to be a clearer assessment as to what we 
can consider in terms of military contingencies for this 
Government, but at the same time I would hope that that 
assessment could, the fact that there would be such an 
assessment would encourage a good number of governments, 
particularly our allies, that they have far more to gain from 
this process from the United States being a cooperative partner 
in this Treaty, even as a nonparty, than they do to isolate us 
by not taking into consideration the very specific requirements 
that we have in the international community, so all I can say 
is I hope I can succeed.
    I don't want to pretend to say that I have got an easy job 
ahead of me. Right now the deck is stacked against me, but we 
have to try. This is a step-by-step process. We have had to 
exercise some patience in getting there, but every time we have 
pursued our objectives since Rome to actually accomplish what 
we need to accomplish, we have accomplished it, so I want to go 
that final mile and see if we can accomplish this objective.
    Mr. Smith. Again, what is the likelihood of doing it? I 
mean Secretary Bolton and----
    Ambassador Scheffer. It could be 50-50 at this stage.
    Mr. Smith. Secretary Bolton and Eagleburger, former 
Secretary of State, have made it clear that they thought we 
lost the fight 2 years ago.
    Ambassador Scheffer. Well, as I said, we simply do not 
share their vision of either having lost or waging this 
campaign. I think you have to be in the trenches of it to 
recognize that other governments truly do not want, at least 
many other governments, truly do not want to see the United 
States walk out of this process. They know how valuable we can 
be in the long-run for this Court and therefore I would hope 
that we could persuade them that a reasonable accommodation 
within the Treaty regime of U.S. interests is going to be to 
the betterment of the entire process and to the Court itself.
    Mr. Smith. I would respectfully suggest that we did lose it 
2 years ago. We are trying to fix it now, and I obviously wish 
you success. We all would wish you success on that, but, you 
know, you mentioned serious repercussions or serious 
consequences. I think we are more likely to avoid that if we 
are very specific in saying this or that happens. 
Predictability I think is your friend now. Can you elaborate on 
some of the consequences if we lose?
    Ambassador Scheffer. Well, as we have already stated to our 
colleagues in other governments in letters that the Secretary 
of Defense has sent to his counterparts, we would have to re-
evaluate our ability to participate in military contingencies 
if we cannot prevail on that, and I think that is a fairly 
powerful consequence.
    In addition to that, I think governments truly are having 
to gauge what is the consequence if the United States cannot be 
a good neighbor to this treaty. It will severely cripple the 
operation of this Court if we cannot be a player in it.
    Mr. Smith. How would it affect peacekeeping in your view, 
and Mr. Slocombe, you might want to add your views on 
peacemaking as well?
    Ambassador Scheffer. I think it could have a very severe 
impact on that. Walt?
    Mr. Slocombe. What the Secretary of Defense said in his 
letter was unfortunately a negative result--that is, a negative 
result with respect to the article 98 effort--could have a 
major impact on our decision whether to participate in certain 
types of military contingencies.
    That is what he said. I would not see that as an absolute 
judgment that we will never send American troops overseas in 
any situation, but it would have to be a factor we would have 
to take into account.
    Mr. Smith. Just getting back to the legislation, and I know 
in its current form you have made it clear you don't support 
it, but can you not at least admit there is some value in again 
broadcasting to the world that we are very serious and that the 
Congress is very serious about there being very negative 
consequences if this thing proceeds and we are included, having 
not been made a party to it, having not ceded or signed it?
    Ambassador Scheffer. Well, I think there is some value to 
it and the mere existence of the legislation I think has sent 
that signal very loudly and clearly.
    What I am saying is that actual adoption of this 
legislation would then have the reverse effect on our ability 
to actually negotiate our common objective.
    Mr. Smith. Let me just take that one step further. I mean 
the President obviously would have the capability of vetoing 
the bill if he thought it was not the right vehicle.
    But let me point out that the Congress also has 
prerogatives, and we do fund peacekeeping. We obviously provide 
the necessary and requisite moneys for our military. It seems 
to me that we need to be very much a part of this because the 
outcome could be a disaster going forward for the world and for 
U.S. men and women in uniform who may be deployed overseas.
    As I have read this, and I have read just about everything 
I can get my hands on, I have grave concerns. I said at the 
outset that no one has been more favorably inclined toward ad 
hoc tribunals than I am. When we had the first hearings in the 
Helsinki Commission on what became the Yugoslavian Tribunal we 
were being told by its leader, the man that was charged by the 
United Nations to take on the responsibility, that it was 
designed to fail, that he had been given insufficient 
resources, that it was nothing but fluff in order to placate 
certain individuals in countries, but it really was not a 
serious effort.
    Now if we go in the other extreme and all of a sudden pass 
or enact something that potentially could prosecute the 
President or our Secretary of State or Defense or Supreme NATO 
Allied Commander, I think we have erred significantly as well, 
and I don't think there has been enough vetting of this issue.
    I think a very small group of people have decided this. As 
I mentioned earlier, you know, I really want to take a look at 
who the actual participants were. We have heard that NGO's were 
filling the seats and taking on the responsibility of 
negotiating rather than the respective governments, who were 
kind of like brushed aside and the designated hitters were 
making decisions. That is serious if that indeed turns out to 
be the case. So I think there has been far less scrutiny 
brought to this, and hopefully these hearings are the beginning 
of even more focus by the Congress, but I thank you for your 
testimony.
    Mr. Tancredo is here. Do you have any comments?
    Mr. Tancredo. No.
    Mr. Smith. I do thank you for your comments. We look 
forward to working with you in the future.
    Ambassador Scheffer. Thank you, Mr. Chairman.
    Mr. Slocombe. Thank you, Mr. Chairman.
    [Whereupon, at 11:51 a.m., the Committee was adjourned.]
      
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                            A P P E N D I X

                          July 25 and 26, 2000

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